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MBE AND MEE
TABLE OF CONTENTS
Business Associations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
Agency & Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
Commercial Paper (UCC Article 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
Conflict of Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7
Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Constitutional Law Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Criminal Law and Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Evidence (Federal) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Evidence Charts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Family Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Federal Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Real Property Estates Diagram . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Secured Transactions (UCC Article 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Trusts & Estates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Wills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Trusts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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MBE and MEE Lean Sheets
BUSINESS ASSOCIATIONS and AGENCY
CORPORATIONS
CORPORATE FORMATION
PRE-INCORPORATION
PROMOTERS: persons acting on behalf of unformed corp. Corp
Liability for promoter’s Ks: when corp adopts by express
adoption by BOD resolution or implied adoption (knowledge &
accepts benefits).
Promoter Liability: until novation; solely liable if corp never
formed.
Duty: promoter is fiduciary, no secret profits. If prop acquired
before formation & sold to corp → profit recoverable if sold for
more than fair mkt value. If prop acquired after & sold to corp
→ any profit recoverable.
SUBSCRIBERS: written agmt to buy stock from unformed corp.
Limitation: subscription agmt irrevocable for six months.
FORMATION REQ’TS: DE JURE (A PAIN)
Authorized shares: (number, classes and series).
Purpose: gen purpose w/ perpetual duration valid and
presumed, unless specific stmt of purpose or ltd duration
expressed. If spec purpose, activities beyond scope are Ultra
Vires activities. Ultra vires Ks are valid. Shareholders can seek
injunction. Corp can sue responsible D&O for losses b/c of UV
acts.
Agent & address of registered office.
Incorporators, names & addresses.
Name of corp, with some indicia of corp status, e.g. inc or corp.
DE FACTO CORP: business that doesn’t fulfill filing formalities
may nonetheless be treated as a corporation if organizers have
made a good faith, colorable attempt to comply with the
corporate formalities and have no knowledge of the lack of corp
status.
LEGAL SIGNIFICANCE: separate legal person; shs not liable for
debts of corp b/c of limited liability. SH is liable only for price
of their stock.
PIERCING THE CORPORATE VEIL: avoid fraud or unfairness and
to render shs liable to 3rd party victim.
Requires: SHs treat corp as their alter ego by failing to observe
sufficient corp formalities OR corp is undercapitalized (fail to
maintain sufficient funds for foreseeable liabilities).
Who Liable?: SH active in operation of corp. or D&O. Courts
more willing to pierce for tort victim than K claimant.
Par Value: min issuance price. No par value means any valid
consid BOD deems adequate.
Treasury stock: stock previously issued and reacquired re-sold
as no par.
Acquiring Prop w/ Par Value Stock: ok if BOD values prop in
good faith as at least par value.
Consequences: if < par value, Ds liable for signing off on below
par issuance and Purchaser b/c SHs must pay full consid for
shares.
PREEMPTIVE RTS: rt to maintain % of ownership each time new
issuance is released. Must be expressly granted in articles.
ACTION AND LIABILITY OF D&O
STAT REQ’TS: bod must have 1 member; shs elect ds; shs can
remove d for any reason.
VALID MTG REQ’D FOR BOD ACTIONS: unless unanimous d
consent in writing to act w/o mtg. Notice can be set in bylaws.
No Proxies or voting agmts.
QUOROM: maj. Vote: maj of votes present. Each D presumed
to concur w/ BOD action unless dissent/abstention in writing.
LIABILITY OF Ds TO CORP AND SHs
Ds have duty to manage the corp, but are protected from
liability by the Bus Judgment Rule. But they are fiduciaries
who owe duty of care and loyalty.
BJR: presumption that ds manage corp in good faith and in best
interest of corp.
DUTY OF CARE: d must act with care a prudent person would
use w/r/t her own business, unless articles have ltd d liability for
breach.
DUTY OF LOYALTY: d may not receive an unfair benefit to
detriment of corp or shs, unless there has been material
disclosure and independent ratification.
Self Dealing: D receives unfair benefit in transaction with corp.
Usurping Corp Opportunities: D receives unfair benefit by
usurping an opp corp would have pursued.
RATIFICATION: defend claim by a) maj vote of ind ds; b) maj
vote of committee of at least 2 ind ds; c) maj vote of shares held
by ind shs. Interested D Doctrine: CL: tx with interested D
voidable at corp’s option. Mod: K invalid unless, BOD approves
tx after disclosure and D doesn’t vote; SH approve K after
disclosure; or K is fair.
OFFICERS: duty of care and loyalty. Os are agents of corp and
FOREIGN CORPS: corp incorp outside of st engaging in
bind corp by auth acts. Req’ts: Pres, Sec, and Treas. Selected
intrastate business must file certificate of authority, including all
and removed by Ds.
a pain info.
INDEMNIFICATION: for costs, atty fees, fines, judgment or
ISSUANCE OF STOCK
settlement in the course of corp business.
CONSIDERATION:
Never indem when D&O loses suit.
Types: money, binding oblig to perform future svcs w/an agreed
value, tanglible/intangible prop; svcs already performed.
Always indem if D&O wins suit.
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BUSINESS ASSOCIATIONS and AGENCY
May indem if: liability to 3rd parties or settlement w/ corp;
D&O shows action in good faith and conduct in corp’s best
interest.
REPURCHASED AND REDEMPTIONS: Decision lies solely with
BOD. SH can’t force corp to repurchase. CL: only from earned
surplus/retained earnings. Mod: not allowed if corp is insolvent.
Who decides? Maj ind Ds; Maj of committee of ind Ds; Maj
shares of ind SHs; Board pursuant to Ind Legal Counsel’s
recommendation.
CLOSELY HELD CORPS: agmt amongst SHs to eliminate
corporate formalities. Req’ts: unanimous SH agmt in Articles,
By-Laws or filed, written agmt. Must be reasonable share
transfer restriction. Result: no piercing. May be S-Corp: P tax
trtmt if < 100 SHs who are indiv, U.S. residents and only one
class of stock.
RIGHTS OF SHAREHOLDERS
DIRECT ACTION: Ds breached fiduciary duty owed to individual
as SH
DERIVATIVE SUITS: SH suing to enforce the corp’s own cause of
action. Req’ts: contemporaneous stock ownership when claim
arose and throughout litigation and demand on BOD that they
cause corp to bring suit. Demand must be rejected or lapse 90
days.
VOTING
Any owner on record date as determined by BOD, up to 70 days
before mtg date.
PROXY VOTING: i) a writing; ii) signed by record SH; iii)
directed to corp. secretary; iv) authorize another to vote their
shares; v) valid for 11 months. Revocable unless proxy says
irrevocable and SH passed some interest.
SH MTG: Annual mtg, 1 D slot must be elected OR specially
noticed special mtg called by BOD, President, or 10% of voting
shares re: fundamental corp change or proposal. Special mtg ltd
to stated purpose.
QUORUM: maj of outstanding shares at mtg’s start. Vote: votes
in favor > votes against.
PROFESSIONAL CORPS: Licensed pro’s. Req’ts: Organizers file
w/ name as PC; SHs must be licensed pros; only practice one
designated profession; Pro liable personally for own
malpractice, but not for other malpractice or obligations.
DUTY TO OTHER SHs: Generally none. Controlling SHs: duty
not to unfairly prejudice minority. If selling to looter, corp will
be liable for damages unless reasonable measures taken to
investigate buyer. Liability also for selling shares at premium
in exchange for corporate office.
FUNDAMENTAL CORPORATE CHANGES
TYPES: Merger; consolidation; dissolution. Fundamental
Amendments to Articles; sale of substantially all corp assets.
STEPS: BOD resolution; notice of special mtg of SHs; approval
by maj of all shares entitled to vote and by a maj of any voting
group adversely effected; file notice with State, e.g. Art of
Merger. EXCEPT: no SH approval for short form merger
(parent corp owns 90% of sub).
APPRAISAL RTS: Dissenting SH can force corp to buy shares at
POOLED OR BLOCK VOTING TRUST: formal delegation of voting fair value. Req’ts: before vote, file written notice of objection
and intent to demand payment; vote objecting to change;
power to voting trustee enforceable for 10 yrs. Req’s written
trust agmt; filed with corp; transfers shares to voting trustee; SH prompt written demand to be bought out. Ct - appoint expert
appraiser to value.
gets trust certs; SH retains all rts but voting.
SH VOTING AGMT: written agmt to vote shares as req’d in
agmt. Binding and enforceable; no time limit or filing.
SALE OF ASSETS: may be considered de facto merger and trigger
recission and appraisal rts. Procedural steps must be followed.
CUMULATIVE VOTING: must be expressly granted in Articles.
Only available when voting for Ds.
DISSOLUTION/LIQUIDATION: approval by maj of Ds and shares
entitled to vote
FEDERAL SECURITIES LAWS
OTHER SH RIGHTS/ISSUES
SH ACTION FOR INVOLUNTARY DISSOLUTION: ask ct for
liquidation if Ds are deadlocked & corp is threatened w/
irreparable injury, or oppression, or waste is occurring.
RECORD BOOKS: demand upon notice / proper time.
DIVIDENDS: declared solely at BOD discretion, ltd only if corp
is insolvent. BOD personally liable for unlawful distributions,
unless good faith reliance on financial officer’s report re:
solvency.
Priority: Preferred share ($ dividend preference payable at $
amt stated; participating preferred paid as preferred and
common share; cumulative preferred paid at rate of preferred
each year). Common paid last and equally.
Paid out of earned surplus, not stated capital.
ANTI-FRAUD (RULE 10(B)(5)): Elements: Interstate Com/Use of
Nat’l Exchange; Scienter – intent to deceive; Deception –
material misrep or misapprop of material non-public info; In
connection w/ actual purchase or sale of securities.
INSIDER TRADING: Tipper: improper purpose + benefit. Tippee:
tipper breach and tipee knew. Misapprop: gov’t prosecution for
trading on mkt info in breach of duty of trust/confidence owed
to source of info.
SECTION 16(B): short swing trading profits.
Req’ts: reporting corp – listed on nat’l exchange or >500 SHs
and $10 mil in assets . Defendant must be D&O or >10% SHs.
They may not buy then sell stock within a single 6 month
period. In 6 months, look at highest sell and lowest buy price.
Effect: profits recoverable.
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BUSINESS ASSOCIATIONS and AGENCY
SARBANES OXLEY: CEO/CFO of reporting corps must certify
that filing doesn’t contain material misrepresentations or
omissions & fairly presents financial position. Willfully cert a
false report - $5 mil fine and 20 yrs. If false report restated,
corp may recover CEO/CFO profits from trading w/in 12
months after filing + incentive based comp. Recovery also from
trades during “black out” of at least 3 days when 50% of
employees are prohibited from trading in retirement plans.
AGENCY & PARTNERSHIP
LIABILITY OF PRINCIPAL FOR TORT OF AGENT
RULE : Principal will be liable for torts committed by agent if i)
principal-agent relationship exists and ii) tort was committed by
agent within the scope of the relationship.
PRIN/AGENT RELATIONSHIP: (ABC)
ASSENT – voluntary, informal agmt, prin must have capacity;
BENEFIT – agent’s conduct must be for prin’s benefit;
CONTROL – prin has rt to control agent by having supervisory
power. Sub-agents: no vic liab unless ABC. Borrowed Agent:
No vic liab unless ABC. Ind Contractor: No vic liab b/c no
power to supervise performance, except great ultra-hazardous
activity and estoppel – hold out ind contractor as agent.
SCOPE: Was conduct of the kind agent was hired to perform?
Did tort occur on the job? Did agent intend to benefit principal?
Frolic v. Detour: whether tort occurred on job. Frolic: new and
ind journey → outside scope. Detour - mere departure from
assigned task → within scope.
INTENTIONAL TORT: Generally outside scope of vic liab,
except: i) specifically authorized by principal; ii) natural from
type of employment; iii) motivated by desire to serve principal.
LIABILITY OF PRINCIPAL FOR CONTRACTS ENTERED BY
AGENT
RULE: Prin liable for Ks entered into by agent if prin authorized
agent to enter into K.
AUTHORITY
ACTUAL EXPRESS: prin used words (incl oral or private) to
express authority to agent. Equal Dignity Doc: if K must be in
writing, then express author must be in writing. Revoked by
unilateral act OR death or incapacity of prin, unless prin gives
agent a durable power of atty, a written expression of authority
w/ conspicuous survival language.
ACTUAL IMPLIED: auth which agent reasonably believes prin
has given b/c of necessity in order to accomplish assigned task;
custom; or prior dealings.
APPARENT: prin “cloaked” agent w/ appearance of auth AND
3rd party reasonably relies on appearance of auth.
Secret limiting instruction: agent has actual authority, but prin
secretly limited auth, and agent goes beyond scope. Prin still
liable.
Lingering auth: actual auth terminated, but agent continues to
act on prin’s behalf. Prin still liable until customer receives
notice of termination.
RATIFICATION: auth granted after K entered if: prin has
knowledge of all material facts re: K and prin has accepted
benefits. Rat must be complete as is, no alterations to terms.
EXTENT OF LIAB: No auth → prin not liable, agent liable. Auth
→ prin liable, agent not. BUT, if prin is partially disclosed OR
undisclosed, the auth agent may be liable at election of 3d party.
DUTIES AGENT OWES TO PRINCIPLE
DUTIES: Reasonable care; obey reasonable instructions, loyalty.
Loyalty: no self dealing (benefit to detriment of prin); no
usurpation of prin’s opp; no secret profits. Remedy: losses
caused by breach & disgorge profits.
GENERAL PARTNERSHIP FORMATION
NO FORMALITIES: can arise from conduct. Def: GP is an assoc
of two or more ppl carrying on as co-owners of business for
profit. Sharing profit creates presumption of GP. But not
lending agmts, wages, commission.
LIABILITIES OF PARTNERS TO THIRD PARTIES
GEN PARTNERSHIP: Agency: principles apply with regard to
torts and Ks.
Personal liability for debts of P. Incoming P not liable for preexisting debt. But, funds from incoming payments can be used
to satisfy prior debt. Dissociating P does retain liab for future
debts until actual notice given to creditors OR 90 days after
filing notice of disassoc to state.
Liab by Estoppel: person who represents to 3rd party that a Gen
P exists is liable as if one does exist.
OTHER FORMS
LTD P: one GP and one ltd P. Req’s Ltd P Certificate with names
of all gen pars. Gen P: liable personally for all ltd P
obligations, incl torts and Ks. Rt to manage ltd P.
REGISTERED LTD LIABILITY P: req’d to register Stmt of
Qualification and annual reports. No liability for underlying
obligations of P, but liability for own wrongdoing.
LLC: members are owners w/ ltd liab for debts and obligations of
business + benefits of Personal taxation. Req’s Art. Of Org and
Operating Agmt. Mems control, but Art can delegate to mgrs.
Ltd liquidity (mems can’t freely transfer interests). Ltd life.
RIGHTS AND LIABILITIES BETWEEN PARTNERS
FIDUCIARIES: Duty of Loyalty (no self-dealing; usurping opp;
secret profits).
REMEDY: action for accounting – recover losses caused by
breach AND disgorge profits.
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BUSINESS ASSOCIATIONS and AGENCY
P PROP: No transfer of specific P assets w/o P authority, e.g.
land, leases or equipment. Personal Prop: can transfer
profits/surplus owned by indiv Ps to 3rd party. Share in Mgmt:
GPs have rt to share mgmt but may not transfer.
MGMT: each P entitled to equal control and vote, absent agmt.
SALARY: absent agmt, Ps don’t’ get salary unless winding up.
PROFITS/LOSSES: Absent agmt, profits shared equally; losses
shared like profit.
PARTNERSHIP DISSOLUTION
DISSOLUTION: begins end of P. At will – dissolution automatic
upon notice of express will of any 1 GP to dissociate. Not at
will: dis occurs upon happening of event specified in agmt OR
maj vote of Ps to dissolve w/in 90 days of dissociation of a
single P. Termination: actual end. Winding up: time btwn
COMPENSATION: Ps get comp during winding up. GPs retain
liability on txs entered into to wind up old biz w/ creditors. GPs
still retain liability on new txs until actual notice of dis given to
creditors or 90 days after filing Stmt of Dis.
PRIORITY: Creditors 1st: outside non-partner trade creditors
AND inside Ps who loaned $ to P. Capital Contributions by Ps
2nd. Remainder: Profits shared equally absent agmt. Losses
shared like profits.
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COMMERCIAL PAPER – UCC Article 3
GENERAL APPROACH
COMMERCIAL PAPER: written instruments for payment of
money.
APPROACH for a commercial paper problem:
1) Identify type of instrument; 2) Identify parties; 3) Determine
if instrument is negotiable; 4) Determine if instrument properly
negotiated; 5) Determine if transferee is Holder in Due Course
(“HDC”); Determine P's cause(s) of action: whether K,
warranty, tort, or not properly payable; 6) Determine D's
defenses; 7) If D liable, can liability be passed to another?
TYPES OF NEGOTIABLE INSTRUMENTS
PROMISSORY NOTE
Contains affirmative promise to pay between Maker and Payee.
(TWO party instrument)
PARTIES: Maker – promisor (obligor). Payee – the promisee
(person entitled to payment).
CERTIFICATE OF DEPOSIT: Note issued by financial institution.
Financial Institution acknowledges receipt of funds, and
promises payee to repay the money.
DRAFT
Contains order for drawee to pay the payee. (ex. personal check)
(THREE party instrument)
PARTIES: Drawer – person ordering payment. Drawee – person
to make payment (if re: checks → drawee = bank). Payee –
person to receive payment.
CHECKS: Req'ts: 1) Financial institution is drawee; and 2)
payable on demand. Types: Regular check, certified check (bank
has agreed to pay), cashier's check (drawer & drawee are same
bank, person buying check = remitter), teller's check (check
drawn by one bank on another bank, person buying check =
remitter), traveler's check (demand instrument requiring counter
sig by person whose specimin sig already on check).
NEGOTIABILITY REQUIREMENTS
REQUIREMENTS TO BE NEGOTIABLE: WOS FU MAD
1) Writing
2) Payable to Order or bearer: Payable to order → must use the
word “order” or “assigns”. Payable to bearer → means payable
to anyone who has it (e.g. payable to “cash”). CHECKS
EXCEPTION: if this is only element of negotiability missing,
“order” or “bearer” language req't waived.
3) Signed by maker or drawer
4) Fixed amount: Must be able to tell principal amt due by
looking at instrument.
5) Unconditional promise to pay: Note: unconditional promise.
Draft: unconditional order. If conditional → K.
6) Payable in Money: domestic or foreign currency ok. May not
be payable in goods or services. If words contradict figures →
words prevail.
7) No Additional Undertaking or Instruction : EXCEPT: a)
undertaking or power to give, maintain or protect collateral; b)
confession of judgment clauses; c) waiver of laws meant to
benefit obligor.
8) Payable on Demand or at Definite time: On Demand: if it
specifically states payable “on demand,” “at sight,” or “on
presentation”. Definite time: payable on or before given date, or
at fixed period after given date. Acceleration clauses OK. If
doesn't state date it's due → demand instrument.
PROPER TRANSFER OF INSTRUMENT
Transfer of negotiable instrument so transferee is a Holder.
Holder = Possession + Good Title.
PAYABLE TO ORDER: if payable to specific payee, must be
delivered to payee. Further negotiation requires payee sig.
PAYABLE TO BEARER: Indorsement not required. Further
negotiation OK by possession alone.
TYPES OF INDORSEMENTS: Special Indorsement – names
specific person as indorsee, who must sign; Blank Indorsement:
Only has payee sig. No specific person named on instrument;
Restrictive Indorsement: contains condition (e.g. for deposit or
collection only)
ID OF PAYEE: If exact payee unclear on face of instrument (e.g.
“John Smith”), intent of issuer controls. Multiple payees – If
separated by “and”, ALL payees must indorse. If separated by
“or”, requires only one sig.
MISSPELLED NAME: Payee may indorse with real or incorrect
name.
PAYEE LACK CAPACITY: May still effectively indorse.
HOLDERS IN DUE COURSE
When negotiable instrument is duly negotiated to a holder in due
course (HDC), the HDC takes instrument free of all claims to it,
free of personal defenses, and subject only to real defenses.
REQUIREMENTS
1) NEGOTIABLE INSTRUMENT: Must meet all 8 requirements.
2) HOLDER: Must have possession of instrument + good title.
3) NO AUTHENTICITY QUESTIONS: No apparent forgery or
alteration of instrument, not irregular or incomplete.
4) FOR VALUE: Must pay value for instrument. Promise is not
enough. Old value is ok. (e.g., payment for goods already
received)
5) GOOD FAITH: Honest in Fact (subjective test) + Observance
of reasonable stadndards of fair dealing (objective).
6) WITHOUT NOTICE: No actual knowledge (subjective) that
instrument (i) is overdue (principal only); (ii) was dishonored;
(iii) has unauthorized sig; (iv) has alteration(s); (v) there's
uncured default w/r/t payment of another instrument issued in
same series; or (vi) is subject to any claims or defenses. Later
notice is OK. Won't lose HDC status.
SHELTER RULE: Transferee acquires rights of transferor. BUT,
having rights of HDC does not make you HDC.
BENEFITS OF HDC
HDC and subsequent transferees take instrument free from:
Claims and Personal Defenses: (i) lack of consideration;
(ii) unconscionability; (iii) waiver; (iv) estoppel; (v) fraud in the
inducement.
Subject only to Real Defenses (MAD FIFI4 + SOUP): (1)
Material Alteration; (2) Duress; (3) Fraud In the Factum; (4)
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COMMERCIAL PAPER – UCC Article 3
Incapacity; (5) Illegality; (6) Infancy; (7) Insolvency; (8) SoL;
(9) Omission of required consumer protection language;
(10) Unauthorized signatures & forgeries; (11) Payment to
former holder.
CONTRACT LIABILITY
Made by: Presenter (person asking to be paid on check); and
previous transferors.
Made to: Parties who pay in good faith: makers, drawees and
acceptors.
List of Presentment Warranties: (1) Entitled to enforce draft or
obtain
payment; (2) No material alteration; (3) No knowledge of
BASIS OF K LIABILITY: D signed negotiable instrument.
unauthorized drawer's sig; (4) if remotely-created instrument,
SIGNATURES BY AGENTS: If signed by binding agent for
person ID'd as drawer authorized it.
principal, principal bound. Agent NOT personally liable only IF
SUE ON WARRANTY OR K? If P is HDC, sue indorser on
(1) principal is ID'd in instrument; and (2) sig clearly shows it
indorser's K. If P is payor and P should not have paid, sue
was made on behalf of principal. Otherwise, agent liable:
indorser for breach of warranty.
To HDC – agent liable UNLESS agent can prove HDC had
FORGERY & ALTERATION
notice that agent signed as principal's rep.
FORGERY
To non-HDC – agent liable UNLESS agent can prove original
parties did not intend agent to be liable.
WHOSE SIG WAS FORGED? Different rules apply based on
Special Rule for Checks – agent for drawer not personally liable whose sig was forged.
if principal's name on check.
Forged Maker's Sig: Alleged maker not liable. But, maker may
ratify sig. Forger is liable.
K LIABILITY FOR DIFFERENT PARTIES:
Forged Drawer's Sig: Alleged drawer not liable. Drawee bank
Maker of Note – enters into K to pay instrument. Must pay
when it's due according to terms at time issued. Liable to holder must credit alleged drawer's acct unless defenses. Defenses: (i)
Drawer's negligence; (ii) “Bank statement rule” - drawer has
or indorser who paid instrument. Defenses: depends on holder
duty to inspect bank statements and canceled checks in timely
status (e.g. whether HDC)
manner, and must report forgeries to bank (w/n 1 year). If repeat
Indorser of Note or Draft – Indorser signs check, and if draft
offender, must report w/n 30 days of statement.
dishonored, promises to pay if notified. Indorsers liable to each
Forged Indorsements( Most commonly tested):
other in order of sigs – liable to later indorsers. May disclaim
liability with by accompanying sig with specific language (e.g. Effect of Forged Payee's name – if forged on bearer paper,
“without recourse, John Doe”).
forgery irrelevant. If on order paper, forgery breaks chain of
Drawer of Draft – if signed, and draft dishonored, obliged to pay title, and check not payable.
draft according to its terms.. May not disclaim liability on
Liability of Drawee – Payee can sue payor bank and depositary
check, but may do so on other drafts.
bank for conversion. Drawer can sue payor/drawee bank since
check not payable. BUT, drawee cannot be liable for conversion
Drawee (bank) – no direct liability because generally doesn't
sign draft. May be liable if agrees to pay draft and signs it. But, and drawer's action.
no obligation to do so.
Bank defenses: (1) imposter rule; (2) fraudulent indorsement by
employee
entrusted with check; (3) drawer negligence; (4)
Co-signers, Sureties & Guarantors – Signs instrument to lend
failure
to
timely
sure (w/n 3 yrs).
credit to another, but receives no direct benefit. Liable in
capacity in which they sign. Presumed guaranty of payment.
Liability of Presenter – If bank pays, it may sue presenter for
May limit liability to collection only. If they pay instrument,
breach of presentment warranty of being entitled to enforce.
entitled to reimbursement from accommodated party.
Liability of Transferor – If presenter loses, he may sue other
transferors for breach of various transfer warranties: entitled to
WARRANTY LIABILITY
GENERALLY: Warranty liability based off of instrument. Implied enforce; authentic & authorized sigs; and no good defenses.
ALTERATION
warranties created by transfer or presentment, not indorsement.
D liability for selling defective instrument.
GENERAL SITUATION: Obligor won't pay because instrument
altered.
TRANSFER WARRANTIES:
Made by: Transferor who receives consideration. No warranty if FRAUDULENT OR NOT: Non-fraudulent alterations don't
discharge any party, and instrument enforced according to
transfer was a GIFT.
original terms. Fraudulent alterations discharge all obligated
Made to: immediate transferee; and subsequent transferees if
transferor indorsed. Drawees and makers NOT allowed to sue parties on instrument unless parties assent to or are precluded
from asserting alteration.
for breach of transfer warranty.
TYPES OF ALTERATIONS: Change in Obligation: unauthorized
List of Transfer Warranties: (1) Entitled to enforce instrument;
change
in instrument modifying party's obligation: (e.g. amount,
(2) Sigs authentic and authorized; (3) No material alteration; (4)
date,
names
of payees, interest rate); Unauthorized Completion:
No defenses; (5)No knowledge of insolvency proceedings
Party's
obligation
affected because instrument completed in
against maker or drawer.
unauthorized manner.
PRESENTMENT WARRANTIES:
EFFECT ON HDC: Even if fraudulent, HDC is protected. If
Presentment and transfer warranties mutually exclusive.
change in obligation, HDC may enforce orig amt. If
unauthorized completion, HDC may enforce as completed.
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CONFLICT OF LAWS
GENERAL
Conflict of Laws issues do not appear as stand-alone questions,
but are embedded in other topic areas.
RECOGNITION & ENFORCEMENT OF
JUDGMENTS
GENERALLY: Rendering State = State handing down judgment.
Recognizing State = State called upon to recognize and enforce
judgment. Judgments either from Sister State or Foreign
Country.
SISTER STATE JUDGMENTS:
Is judgment entitled to Full Faith & Credit (“FF&C”)?
If answer is NO, Deny recognition.
(Two Step Analysis)
STEP 1: ARE THE 3 FF&C REQ'TS BELOW SATISFIED?
(1) DIVORCE DECREE: Req'ts: proper SMJ and at least 1 of the 2
spouses must be domiciled where divorce granted.
(2) ALIMONY & CHILD SUPPORT AWARDS: Req'ts: Ct granting
must have PJ over spouse whose prop rts affected.
(3) CHILD CUSTODY AWARDS: Only child's home state has jx.
DOMICILE
DOMICILE BY CHOICE: Acquired by someone with "domicile
capacity" (i.e., ability to fend for oneself). 2 Req'ts:
(1) Physical presence in a place (even for short time, if intent is
clear); and (2) Intent to be domiciled in that place (regardless of
motive). NOTE: If multiple residences, the principal one is
domicile. NOTE: One's domicile retained until two part test
perfected elsewhere.
DOMICILE BY OPERATION OF LAW: A domicile assigned to one
who lacks "domicile capacity."
(1) Rendering state must have had valid jx over both parties and
(1) Infants get domicile of parents. If divorced/separated, get
subject matter. NOTE: Jx can be attacked ONCE - either in
domicile of custodial parent.
rendering or recognizing state court proceeding
(2) Mentally incompetent person gets domicile of parents. If
(2) Must be on the merits (includes default & consent judgment)
became incompetent after selecting a domicile by choice, retains
(3) Must be final. If modifiable (e.g. order for future
that domicile.
alimony/child support), no FF&C, but usually enforced under
CHOICE OF LAW - GENERAL
comity.
QUESTION: If litigation involves multiple states that have
STEP 2: ANY GOOD DEFENSES TO FF&C?
"conflicting laws" with "conflicting results, which state's law
Good Defenses
governs?
(1) Judgment is penal (one which punishes "an offense against
ANSWER: Law selected by forum court using its choice of law
the public"). P is the state, not private person.
approach (subj. to const'l and statutory limitations).
(2) Judgment procured by extrinsic fraud (i.e., fraud that couldn't
be dealt with during earlier trial, such as bribing judge).
LIMITATIONS:
Bad Defenses
(1) Constitutional Limitations: State must have some significant
contact(s) with and/or legit interest in litigation.(Almost always
(1) Tax Judgment
(2) Action based on cause of action that violates public policy of satisfied). No weighing of states' interests needed.
recognizing state (irrelevant).
(3) Mistakes of fact or law were made (should have been
handled or appealed within rendering court system).
(4) Inconsistent judgments (later judgment enforceable even if
inconsistent with earlier judgment).
FEDERAL/STATE COURTS: Fed and State Cts are required to
recognize judgments from the other.
FOREIGN COUNTRY JUDGMENTS:
Generally recognized (given Comity) on same grounds as sister
state judgments. BUT, recognizing court determines whether
State's due process/“fairness” standards are satisfied in terms of:
(1) Whether jx was proper (min contacts analysis); and (2)
Whether "fair" procedures used during the earlier foreign
litigation.
SPECIAL ISSUES OF FAMILY LAW JUDGMENTS:
(2) Statutory Limitations: State or fed statutes direct ct what it
must or can't apply (e.g., borrowing SOL, fed patent law, etc.)
ERIE DOCTRINE: In fed div cases, ct must apply substantive law
of state where ct located, including conflicts rules. If transferred
from other district, ct applies rules of transferor state.
DEPECAGE: Process of applying law of diff states to decide diff
issues. Ct assumes a case is to be governed by laws of forum
unless a party timely invokes the law of a foreign state and
establishes that foreign law should apply.
RENVOI: provides that forum may apply state's internal law and
its conflicts rule if doesn't like foreign law to be applied. Gen
rejected, but may be applied in cases concerning (1) validity of
marriage; (2) status of parent's kinship with child; and (3)
dispositions of interests in land.
PROOF OF FOREIGN LAW:
Recognition and enforcement of family law judgments involves Trad: Law of any other state treated as fact, not law. Law would
need to be pleaded and proved.
consideration of jx (SMJ and Personal Jx (“PJ”)). 3 types of
judgments:
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CONFLICT OF LAWS
Mod: Most states take judicial notice of sister state and Fed law. (2) If P and D from diff states, then if law of the place where the
Treament of foreign law is divided among states, but generally accident occurred helps its citizens, then apply that state’s law.
matter for ct not jury.
(3) When P and D from diff states, and law of the place where
the accident occurred does NOT help its citizens, still apply law
CHOICE OF LAW APPROACHES
of the place of injury unless the other state has greater interest in
CHOICE OF LAW APPROACHES
the outcome.
TRADITIONAL VESTED RTS APPROACH: For each substantive
VESTED RTS: Place of injury
law area, there are "vesting" rules re: where P's rts vest. "Fact
MOST SIG RELATIONSHIP: Cts consider (i) place of injury; (ii)
based" rules that determine which state's law will govern.
place of conduct causing injury; (iii) place of home state; (iv)
Where do rts vest? (i) Torts – place of injury (not place of
place where relationship (if any) between parties centered.
negligence); (ii) K's – place of K formation; (iii) Real Property –
CONTRACTS
situs of land.
THRESHOLD ISSUE: If there is a valid, express CoL provision in
MOST SIGNIFICANT RELATIONSHIP APPROACH:
K, it governs. BUT, may be invalid IF: (1) Law selected is of
Ct applies law of state most significantly related to outcome of state w/no reasonable relationship with K; or (2) No true mutual
litigation. Ct considers (a) connecting facts in case; and (b)
assent (e.g., fraud, misrepresentation).
certain policy-oriented principles. Very fact intensive approach. If No Valid, Express Provision: Apply basic choice of law rules:
INTEREST ANALYSIS (GOVERNMENTAL INTEREST) APPROACH: VESTED RTS APPROACH: K formation issues – place of
Gen Rule: Ct applies its own law so long as it has legit interest execution; K perf issues – place of perf.
in outcome of litigation. But, if true conflict between diff state MOST SIG RELATIONSHIP APPROACH: Cts consider (i) place of
laws, Ct seeks to ID which state has greatest interest in
negotiation; (ii) place of execution; (iii) place(s) of perf; (iv)
application of its law.
place of home state; (v) location of subj matter.
REAL PROPERTY
Note: Interest Analysis Approach does not vary depending
on area of law.
BOTH APPROACHES: Law of situs. Pertains to inter vivos and
Possible Outcomes of Interest Analysis:
inheritance matters.
PERSONAL PROPERTY
• False Conflict: If only one state has interest in applying
its laws, apply that state's law.
BOTH APPROACHES:
Inter Vivos Transactions: Situs at time of transaction.
laws. If forum has legit interest in outcome of litigation, Inheritance Matters: Domicile of decedent at time of death.
NOTE: If intangible prop interest incorporated in a doc (e.g.,
it will apply its own law. NOTE: Almost always apply
forum law in true conflict cases b/c forum almost always stock certificate), situs is where doc located.
has legit interest in outcome.
CORPORATIONS
• Disinterested Forum: Forum state has no legit interest,
Apply law of state where incorporated.
but 2 or more other states do. Forum state may either (i)
MARRIAGE
apply law it deems “better”; or (ii) apply law closest to
Gen Rule: If marriage valid where performed, valid everywhere.
law of forum.
EXCEPT: Where domiciliaries of one state temp leave and
• No State has Legit Interest: Apply law of forum.
marry elsewhere to avoid a "prohibitory rule" of domicile state.
• True Conflict: Both states have interest in applying their
BETTER RULE APPROACH: (increasing acceptance): Cts apply
best substantive rule. Cts consider: (i) predictability; (ii)
maintenance of interstate and intl order; (iii) simplicity of jud
task; (iv) gov's interest; and (v) application of better rule law.
CHOICE OF LAW RULES IN SPECIFIC AREAS
TORTS
RULE CATEGORIES:
Rules Regulating Conduct: Cts normally apply law of the place
of the injury.
Loss Distribution Rules: Allocate losses resulting from tortuous
conduct. The majority of tort rules. Include wrongful drath; med
mal awards, guest statutes, vicarious liability, etc.
Gen Approach:
(1) If P and D have same domicile, apply that state’s law.
DIVORCE
Forum always applies its own divorce laws.
LEGITIMACY
(1) Child born out of wedlock is illegitimate. If mother is
married, child is presumed legitimate.
(2) Validity of subsequent acts of legitimation governed by law
of father's domicile. Mod: valid if sufficient under law of either
father's or child's domicile.
DEFENSES TO CHOICE OF LAW
3 POTENTIAL DEFENSES TO PROPOSED CHOICE OF LAW
(1) AGAINST PUBLIC POLICY: Must be extremely offensive.
(Rarely accepted defense)
(2) LAW IS PENAL: only applies to offenses against public.
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CONFLICT OF LAWS
(3) LAW IS PROCEDURAL, NOT SUBSTANTIVE: (IMPORTANT)
If procedural, forum will apply own law. Procedural laws
include: burden of proof laws; Statutes of limitation, ability to
bring counterclaims, etc.
SOL Exceptions: Although SOL generally procedural, 2
exceptions:
(i) Borrowing statutes – forum directed to apply shorter SOL .
(ii) Statute conditions Substantive Rt – If you apply other state's
statute which creates sub rt, should apply entire statute,
including procedural provisions.
Mod Trend: SOL treated as substantive matters.
USE OF STATE LAW IN FED CT: if in Fed Ct because of diversity,
must use state's CoL rules.
FEDERAL PREEMPTION
FED PREEMPTION OF STATE LAW: 4 circumstances:
(1) Express: Congress specifically prohibits states from enacting
a law.
(2) Actual Conflict: State law in direct conflict w/fed law
(3) Implied Conflict: Fed law itself established standard of fed
preemption
(4) Field Preemption--- Conflict w/fed treaty, foreign affairs, or
tries to occupy area where Congress left no room.
MISCELLANEOUS
DEFAULT JUDGMENTS: considered “on the merits” for purpose
of FF&C. BUT, don't give rise to collateral estoppel because no
issues have yet been litigated
DRAM SHOP ACT: statutory liability on vendor of liquor if drunk
customer injures another.
Gen Rule: If liq served in state with no DSA, and injury
occurred in state with a DSA, ct will generally won't impose
liability since D would be exempt.
SPRINGING POWER OF ATTORNEY: Instrument becomes
effective only on the happening of specified future event (e.g.
principal's incapacity). For SPA to become effective, powerholder must declare in writing that the event has occurred.
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CONSTITUTIONAL LAW
FEDERAL JUDICIAL POWER
law mutually exclusive; st law impedes on fed objective; or
Cong evidences clear intent to preempt). Tax: can’t pay state tax
JUSTICIABILITY
out of fed treasury, but can tax private store on fed land.
(A SPERM)
DORMANT COMMERCE CLAUSE: state or local law is
ABSTENTION: fed can’t enjoin pending st. ct proceeding.
unconstitutional if it places excessive burden on interstate
STANDING: Req’ts: (Pickled Doughnuts Cause Reflux) Personal commerce.
& Direct Injury; Causation; Redressibility. No Third party
PRIVILEGES AND IMMUNITIES CLAUSE OF ART IV: state may not
standing: EXCEPT close relationship; injured 3rd party unlikely deny citizens of other states of the privileges and immunities it
to assert his own rts; Associational standing: indivs have
accords its own citizens.
standing; germane to organization’s purpose; neither claim nor
DORMANT CC & PRIVILEGES AND IMMUNITIES CLAUSE:
relief requires participation of indivs.
P&I under Article IV
Commerce Clause
POLITICAL QUESTION: Will not adjudicate challenges to
Amend’s; Foreign policy; Repub form of gov; Impeachment;
Discrim re: Civil Liberty /
Burden on Interstate
Ability to Earn Livelihood
Commerce
partisan gerrymandering.
MOOTNESS: live controversy. Except: wrongs capable of
repetition but evading review; voluntary cessation; class actions.
Violation unless necessary to
achieve substantial
government interest and no
less restrictive means to
achieve objective
Violation unless necessary to
achieve important gov’t
interest and no less
discriminatory than
necessary to achieve
objective. EXCEPT: Cong.
approval or Market
Participant
No application
Simple balancing test. Viol if
burdens exceed benefits.
Taxes ok if:
No Discrimination
FEDERAL LEGISLATIVE POWER
POLICE POWER: none except MILD – Military; Indian
reservations; Land (fed); DC.
GENERAL WELFARE: may only tax and spend.
COMMERCE POWER: (1) Channels of interst comm; (2)
instrumentalities of IC; (3) substantial effect on IC (cumulative
impact for economic activity only).
LIMITATION: 10th Am - can’t compel st to regulate or act, but
may induce w/ strings on grants if expressly stated & related to
purpose. 14th Am – cong can't create new or expand existing
rights. Only prevent or remedy violations of existing rts if
propor/congruent to violation.
FEDERAL EXECUTIVE POWER
Discrimination
11TH AM/SOVEREIGN IMMUNITY: sts can’t be sued in fed ct
unless Fed gov’t sues; Express waiver; or Congress clearly
removes immunity.
RIPENESS: some viol of law or when nothing to be gained with
actual violation.
- Substantial nexus to
state.
- Fairly apportioned.
- Fair relationship to
services or benefit
provided by state.
Limit – corps and aliens can’t sue under P&I.
INDIVIDUAL LIBERTIES
STATE ACTION: req’d before Qal provisions applied to private
TREATIES: Must be ratified by Sen but no Sen approval req’d to entities. Occurs if excessive st financial entanglement or where
entity performs public function. Entanglement = gov’t
void. Conflicts: St. law is invalid. Fed law – last adopted
authorizes, encourages, or facilitates activity.
controls. US Constitution (“Q”) – treaty invalid.
EXECUTIVE AGMTS: No Sen approval needed. Conflicts: St. law Bill of Rts: Selected incorporation to states under 14th Am.
is invalid. Ex Agmt never valid over conflicting fed law or Q.
SCRUTINY
APPT: Pres appoints ambassadors, fed judges, officers w/ Sen
RATIONAL BASIS: rationally related to legitimate gov’t interest.
confirmation. Cong may vest appt authority but may not give
INTERMEDIATE SCRUTINY: law must be substantially related to
itself appt power.
an important gov’t interest. Must be narrowly tailored to
REMOVAL: unless limited by stat, Pres can fire exec officer.
achieve objective.
Cong may limit if independence from Pres desirable AND may STRICT SCRUTINY: law must be necessary to achieve a
only limit removal with good cause.
compelling state interest. Least restrictive means necessary to
IMPEACHMENT: Removed for treason, bribery, and high crimes achieve objective.
& misdemeanors. Req’s maj house vote and conviction in Sen
DUE PROCESS
by 2/3.
PROCEDURAL DP
FEDERALISM
Deprivation of life, liberty or property (only if entitlement). If
PREEMPTION: Supremacy Clause: Q and laws/treaties made
yes, balance (1) Importance of interest to indiv; (2) ability of
pursuant to it are supreme. Express or Implied (either Fed/St
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CONSTITUTIONAL LAW
add’l procedures to increase accuracy of fact finding; (3) gov’t
interest in fiscal & admin efficiency.
SUBSTANTIVE DP
ECONOMIC LIBERTIES – rational basis, limiited protection.
K CLAUSE: state/local law effecting already existing Ks → inter
scrutiny. (1) subst impairment of K relationship; (2) whether st
law is designed to promote a signif and legitimate public
purpose and narrowly tailored.
TAKINGS: 5th Am provides that private property may not be
taken for public use without just compensation.
Taking: (1) denial of all economic value or (2) decrease of
economic value that leaves no economically viable use for the
property. Ct considers: the social goals; diminution in value to
owner; and the owner’s reasonable expectations. If reduction in
value > promotion of pub welfare → taking.
Public Use: rationally related to a legitimate public purpose.
Remedy: If not, gov must pay for land or give land back +
damages.
FUNDAMENTAL RTS → SS. CARP SPERM: Contraception.
Abortion. Rt. to privacy. Procreation. Speech.
Parenting/Custody. Extended family together. Rt under 1st Am.
Marriage.
ABORTION → undue burden. Before viability – no prohibition,
but reg ok so long as not an undue burden. After viability – sts
may prohibit unless nec to protect life of mother. Spousal
notice/consent – unQ. Parental notice/consent for minors ok, but
only if alt jud approval process.
UNKNOWN SCRUTINY: refuse med trtmt and homosexual
activity.
NO RIGHT: physician assisted suicide; practice trade; educ.
EQUAL PROTECTION
Q PROVISIONS: St/Local → 14th Am. Fed → 5th Am DP
clause.
RACE/NAT’L ORIGIN: Exists if: Discrim on face or discrim
impact + intent. Scrutiny: SS. Set asides/quotas: req’s clear
proof of past discrim and congruent remedy. College
Admissions: race can be a factor b/c of compelling interest of
diversity, but may not simply add pts or have a set aside. Not ok
in public secondary schools. Apportionment: consideration ok
but can’t be predominant.
GENDER: Exists if: Discrim on face or discrim impact + intent.
Scrutiny: Intermediate. Role Stereotypes: not ok. Remedial
measures: ok if designed to address past discrim and diff in
opportunity.
ALIENAGE: Gen: SS. But re: self gov’t/demo process: Rational
Basis (e.g. voting, jury serv, being police or elem/sec teacher).
Undoc Alien Children: Inter Scrutiny (rt to educ).
NON-MARITAL CHILDREN: Scrutiny: Interm.
RT. TO TRAVEL: SS, e.g. preventing ppl from moving or
residency req’ts.
RT. TO VOTE: SS. At large elections ok unless proof of discrim
purpose.
POL CANDIDACY: Fee can’t preclude indigent. Ballot access
regs must be reasonable and non discrim means of promoting
imp state interest.
ALL ELSE: Rational basis (e.g. age, disability, wealth/econ, sex
orientation, educ.)
FIRST AMENDMENT
RESTRICTION ON SPEECH: Content based → SS. Two types:
Subject matter - law restricts topic of speech. Viewpoint restricts specific ideologies. Content Neutral → generally
immediate scrutiny.
PRIOR RESTRAINTS: Judicial order or admin system stopping
speech before it occurs. Prelim Injunction → SS. Req’s: (1) std
narrowly drawn, reasonable & definite; (2) injunction promptly
sought; (3) prompt and final determination. Person must act
according to injunction until overturned. If in violation, no
challenge. Licenses/Permits: no discretion in licensing
authority. Must contain procedural safeguards like prompt
determination of requests for licenses and judicial review.
FACIALLY INVALID REGULATIONS: Vagueness: reas person can’t
tell what is prohibited/allowed Overbreadth: regulates
substantially more speech than Q allows. Unfettered discretion:
too much power given to licensing authority. NOTE: Fighting
word bans are unQ as vague and overbroad.
SYMBOLIC SPEECH: conduct that communicates. Test: Reg ok if
(1) imp st. interest independent of suppression of msg; and (2)
impact on comm no greater than necessary. (Int. Scrutiny)
Types: Flag burning protected. Draft card and nude dancing not
protected. Burning cross protected unless done w/ intent to
threaten. Contribution limits ok; expenditure limits unQ.
LESSER PROTECTED SPEECH:
Incitement of Illegal Activity: punishable if (1) substantial
likelihood of imminent illegal activity and (2) speech directed to
causing imminent illegality.
Obscenity: Test: PIPS – Prurient Interest. Patently offensive.
Serious value (lack of). Prurient interest = local std of
shameful/morbid interest in sex. Patently offensive = local std.
Serious value = no redeeming artistic, literary, political or
scientific value based on national reasonable person standard.
Zoning Regs: ok to reg location and size of adult bookstores and
movie theaters in order to target secondary effects. Child porn
may be completely banned, even if not obscene, but actual
children must be used in production.
PROFANE AND INDECENT LANGUAGE: gen protected, except
Broadcast Media: radio station/free network tv b/c of
intrusiveness into home and accessibility by kids.
Schools: responsibility of teaching civilized discourse.
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CONSTITUTIONAL LAW
COMMERCIAL SPEECH: Truthful com speech always protected.
False and deceptive ads not protected. Test: Interm scrutiny. (1)
serves substantial gov’t interest; (2) directly advances that
interest; (3) narrowly tailored to serve that interest (need not be
least restrictive)
DEFAMATION: Libel and slander not protected.
Pub official: must show falsity and actual malice.
Pub figure: Same as pub official.
Private fig: if pub concern, must show falsity and negligence. If
no pub concern, no malice necessary.
FREEDOM OF PRESS/PRIVACY: Truthful Public Info: no
restrictions so long as info was lawfully obtained by gov’t
records.
Illegally intercepted calls: media no liability so long as media
didn’t participate in illegality and re: matter of pub importance.
Access to Govt: gov’t may limit dissem of info to protect
privacy.
FREEDOM OF RELIGION:
Free Exercise Clause: No punishment on basis of religious
beliefs. But Free Ex can’t be used to challenge neutral laws of
general applicability, except denial of unemployment benefits if
person quit for religious reasons or Amish who have rt not to
educ children. If not generally applicable or if enacted to
discriminate → SS.
Establishment Clause: Lemon test. SEX. (1) Secular purpose;
(2) Effect neither advances nor inhibits religion; (3) No
eXcessive entanglement with religion. No discrimination
against religious speech or among religions unless SS. School:
No gov’t sponsored religious activity. BUT, religious groups
must be given same access to school facilities.
PUBLIC EMPLOYMENT: Public concern → balance employee's
rts as citizen against gov’t interest in efficient performance of
pub service. Not public concern → wide deference to employer
judgment. If within employee duties → punishment ok. No
firing for party affil unless in policy making position.
Gov’t Papers: no req’t for public accessibility.
Criminal Trials: public and press have rt to attend, but may
be limited by overriding interest determined by judge based
on intermediate scrutiny.
FORUMS FOR SPEECH:
Public forums: (parks, sidewalks, etc.) regs must be subj
matter and viewpoint neutral. If not → SS. Regs must serve
imp gov purpose and leave open adequate alt places for comm.
Designated public forums: (Gov properties which gov allows
open for speech.) same as public forums.
Limited public forums: (gov properties ltd to certain groups or
dedicated to disc of limited topics). Regs ok if reasonable and
viewpoint neutral.
Non-public forums: (mil bases, outside prisons, sidewalks on
post office prop, ad space on city buses, airports) Reg ok if
reasonable and viewpoint neutral.
FREEDOM OF ASSOCIATION:
Prohibit/Punish Group membership → SS. Req’s: AAA
(knowing + specific intent) (1) Actively Affiliated with group;
(2) knowing of illegal Activities; (3) specific intent of furthering
illegal activities.
Disclosure of Group Membership: if chilling effect → SS.
Unrelated to Suppression of Ideas → SS.
Prohibition of Discrimination: Qal unless interfere with intimate
association (small groups) or expressive association (discrim
integral to expressive activity of group, e.g. KKK).
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Constitutional Law Charts
EQUAL PROTECTION
Step One: What is the classification?
Step Two: What is the level of scrutiny?
Strict Scrutiny
Intermediate Scrutiny
Law must be necessary to
achieve a compelling state
interest.
• Race
• Alienage, generally
• National origin
• Domestic travel
• Voting
Rational Basis
Law must be substantially related to Law must be rationally related to a legitimate
an important government interest.
government interest.
• Gender
• Illegitimacy
• Undocumented alien children
•
•
•
•
•
•
Alien (gov’t and demo process)
Congressional regulation of aliens
Age
Disability
Wealth
Everything Else
Step Three: Does the law meet the level of scrutiny?
FORUMS FOR SPEECH
Public
Forum
Designated
Public
Forum
Limited
Public
Forum
Non-Public
Forums
Definition
Neutrality Required
Gov’t property that is
historically open for
speech, e.g. streets,
sidewalks and pub parks
Gov’t property that could
be closed to speech, but
which government has
chosen to open
Gov't property limited to
certain groups or
dedicated to discussion of
limited topics
Subject and Viewpoint
neutral.
Gov’t property that gov’t
can and does close to
speech
Subject and Viewpoint
neutral.
Viewpoint neutral.
Viewpoint neutral
Test
Narrowly tailored to serve important gov’t
interest and leaves open alternative channels
of communication. Need not use least
restrictive alternative.
Narrowly tailored to serve important gov’t
interest and leaves open alternative channels
of communication. Need not use least
restrictive alternative.
Reasonably related to a legitimate
government purpose.
Reasonably related to a legitimate
government purpose.
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CONTRACTS
1) What is the APPLICABLE LAW?
THE UCC: UCC Art. 2 governs the sale of goods, with applicable
rules also applying to merchants.
THE COMMON LAW: majority rules governing contracts other
than the sale of goods.
MIXED CONTRACTS are determined by the more important part
of the deal, except divided contracts in which both UCC and
common law rules may apply.
TYPES OF KS:
Unilateral K: offer expressly required perf as method for
acceptance.
Divisible Ks: perf divided into 2 + parts under K; number of
parts due from ea party is the same; and perf between parties is
equivalent.
Option K: agmt to leave open in exchange for consideration.
Ads: gen preliminary proposal unless words are to identifiable
person, e.g. first come first serve.
Quasi-K: equitable remedy when K results unfair. Prevents
unjust enrichment.
2) Contract FORMATION problems
OFFER
REQUIRES: 1) a manifestation of a present intent to contract
demonstrated by promise, undertaking or commitment, 2)
definite and certain terms, and 3) communicated to an identified
offeree.
CONTENT: Sales – price & description. UCC – quantity. Req’t
K – terms of exclusivity. Real estate – ID of land and price.
Employment – duration.
TERMINATION
REVOCATION: unambig stmt by offeror to offeree or unambig
conduct indicating unwillingness to K that offeree is aware of.
Option K: No revocation.
Firm offer: (UCC – offer can’t be revoked for up to 3 months if
offer to buy or sell goods, signed written promise to keep open
and party is merchant).
Detrimental reliance: (no revoke if reasonably foreseeable
detrimental reliance).
Start of performance: MBE: offer irrevocable once perf started.
Rejection: counteroffers kill; add’l terms under CL mirror
image rule; lapse of time, e.g. > 1 month; conditional
acceptance kill.
ACCEPTANCE
A manifestation of assent to the terms of an offer in the manner
prescribed or authorized by the offer.
FULL PERFORMANCE
START PERFORMANCE: for bi-lateral K, but not for unilateral K.
MAILBOX RULE: (acceptance effective when mailed, all else
when received);
SELLER OF GOODS SENDS WRONG GOODS, unless with
explanation (then it’s a counteroffer)
OFFEREE PROMISE TO PERFORM
ADD’L TERMS: CL mirror image rule; UCC – one party
merchant → add’l term is proposal subject to sep rejection; both
parties merchants → add’l term is part of K unless materially
alters, offeror objects within reasonable time, or offer limits
acceptance to the terms.
CONSIDERATION
Req's bargained-for exchange of legal detriment btwn parties.
PAST CONSIDERATION: MBE: not consideration, except
expressly requested performance/ forbearance and expectation
of payment. New consideration req’d for pre-existing K or
statutory duty: except in CL, unforeseen difficulty, third party
promise or promise to pay debt barred by SoL.
SUBSTITUTES: written promise when prior obligation had
applicable legal defense; promissory estoppel.
DEFENSES
INCAPACITY: under 18 has a rt to disaffirm K unless minor
retains benefit after gaining capacity.
ILLEGALITY – subject matter illegal → K is void; subject matter
is legal, purpose is illegal → K enforceable only by person who
didn’t know of illegal purpose.
PUBLIC POLICY: (covenant not to compete, exclupatory clause).
MISREPRESENTATION/NONDISCLOSURE: innocent party may
rescind if induced to enter K by fraudulent misrep or nonfraudulent material misrep .
DURESS: improper threat and no reasonable alternative.
Unconscionability: unfair surprise and oppressive terms at time
of K.
AMBIGUITY/ MISUNDERSTANDING: each party uses a material
term open to two reasonable interpretations; each party attaches
diff meaning to term; neither party knows or has reason to know
the term is subject to two interpretations causing ambiguity.
MISTAKE: no K if mutual mistake on basic assumption of fact
that materially affects agreed upon exchange and not a risk that
either party bears. Unilateral mistake not voidable unless other
party knew or should have known.
STATUTE OF FRAUDS: Applies to MY LEGS - Marriage, Year,
Land, Executory guarantee, Goods > $500, Suretyships. Satisfy
by perf, writing, or judicial admission. In real estate, part perf
req’s 2 out of 3 of the following: payment, possession, or
improvements.
Writing req’s: Non-UCC: parties, subj matter, terms &
conditions, consideration, sig. UCC: quantity terms and sig,
unless confirmatory memo of oral K and no obj w/in 10 days.
TERMS
PAROL EVIDENCE RULE: integration issues. Merger clause is
highly persuasive but not determinative. No PE to reform or
contradict written terms, unless there’s a mistake in integration.
PE ok to argue defense to enforcement, explain ambiguous
terms, to provide add’l terms if only partial integration, or add’l
terms would ordinarily be in sep agmt.
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CONTRACTS
CONDUCT: course of perf (same ppl, same K), course of dealing
(same ppl, similar K) custom and usage (dif ppl, similar K).
UCC DEFAULT: delivery obligation - either Shipment Ks or
Destination Ks; FOB means “free on board.” If city is where
seller is located → shipment contract; if buyer's city →
destination contract.
Risk of loss: - determined by agmt, breach (even slight) shifts
risk of loss, delivery by common carrier (shipment K → risk of
loss to buyer when seller delivers to carrier; destination K →
risk of loss to buyer when seller delivers to buyer). If none,
merchant seller → risk of loss to buyer on receipt of goods; if
non-merchant → risk of loss to buyer upon tender. If risk of
loss on buyer → buyer pays full K price; on seller → possible
liability on seller for non-perf);
Express Warranties: UCC – seller liable for breach (statements
of fact, promises, description of goods, etc)
Implied Warranty of Merchantability: if dealing in goods of that
kind and fitness for a particular purpose if seller has reason to
know of purpose and reliance. .
All Ks have implied warranty of good faith and fair dealing.
3) PERFORMANCE problems
BREACH OF CONTRACT occurs any time a party refuses to
perform under the terms of the agreement. Such breaches are
categorized as either material or minor, with material breaches
excusing the other party from performance.
SALE OF GOODS:
Perfect tender: if sale of goods, S’s perf must be perfect or B
can reject.
Rejection of goods: retain and sue for damages or reject all of a
commercial unit and sue for damages. Cure: S has second
chance at perfect tender if: S had reasonable ground to believe
delivery would be accepted OR time to perform hadn’t expired.
Installment Ks: B can reject installment only if there’s a
substantial impairment that can’t be cured.
Acceptance of goods: if accepting goods, B can’t later reject.
Payment doesn’t equal acceptance w/o opportunity to inspect.
Implied acceptance if B keeps for reasonable amt of time.
Revocation: if B hasn’t accepted goods, B may cancel K by
revoking acceptance if: nonconformity substantially impairs
value of goods, excusable ignorance of grounds for revocation
or reasonable reliance on S’s assurance, and revocation w/in
reasonable time after discovering nonconformity.
Common law: substantial performance
4) EXCUSE for non-performance?
PERFORMANCE EXCUSED IF:
Improper perf by other guy - material breach.
Non-occurrence of condition – mutually agreed promise
requiring strict compliance.
Anticipatory Repudiation – Effect → excuse relying party from
perf and immediately sue for damages (not avail if relying party
fully performed); suspend perf and wait for perf date to sue;
treat repudiation as offer to rescind and treat K as discharged.
Retraction ok if other party hasn’t materially changed position.
Insecurity – if reasonable grounds, relying party can demand
adequate assurance and may suspend perf.
LATER K:
Rescission: only if perf not completed.
Accord and satisfaction: mutual agmt of existing obligation to
accept diff perf or by acceptance of check marked “paid in full.”
Modification: mutual agmt to accept diff agmt to satisfy
existing K. CL: new consideration needed to modify. UCC: not
needed to modify, but must show good faith for mod.
Novation: mutual agmt to substitute existing party w/ another,
excusing perf of substituted party.
LATER UNFORESEEN EVENT:
Impossibility: can’t be done (damage, desctuction, death,
subsequent law or reg)
Impracticability: can’t be done w/o extreme and unreasonable
difficulty or expense. Increase in seller cost rarely excuse
Frustration of purpose: unforeseeable supervening event
destroys purpose of K.
5) What are the REMEDIES?
NON-MONETARY (IN REM):
Specific performance: typically limited to real estate, sale of
unique goods, but never for services. Req's – valid K, conditions
satisfied, inadequacy of legal remedies, mutuality, feasibility of
enforcement.
Rescission: cancels K. Req's – grounds for rescission, e.g.
mutual mistake or unilateral mistake if non-mistaken party
would suffer undue hardship or knew of mistake. No
negligence.
Reformation: changes written agmt to conform to parties’
original understanding. Req's – valid K, grounds for
reformation. No negligence, SoF, PER.
Reclamation: rt of unpaid seller to get goods back. Only if
Buyer was insolvent at time of receipt and Seller makes demand
for return w/in 10 days of buyer’s receipt or reasonable time if
buyer gives express representation; and buyer has goods at time
of demand.
Rights of good faith purchaser in entrustment: owner entrusts
goods to person who sells that kind of good and person
wrongfully sells to third party. GFP cuts off rt of original
owner.
MONETARY DAMAGES:
Expectation interest: put P as if K wasn’t breached.
Reliance interest: puts P in same dollar position as if K wasn’t
breached.
Restitution interest: prevent D’s unjust enrichment.
DAMAGES FOR SALE OF GOODS: S breaches/B keeps –
difference btwn value of goods delivered and fair market value
had they been perfect. S breaches/S keeps – difference btwn K
price and either market price or cost of replacement. B
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CONTRACTS
breach/B keeps – S recovers K price. B breaches/S keeps – Diff
btwn market and K price.
ADDITIONAL DAMAGES:
Incidental: cost for finding replacement.
Foreseeable consequential damages: damages from P’s special
circumstances, only if D had reason to know of special
circumstances.
LIMITATIONS: Avoidable damages: P must mitigate. Certainty:
loss must be proved w/ reasonable certainty
LIQUIDATED DAMAGES: K fixes amount of damages . Valid if:
damages difficult to ascertain & reasonable forecast.
6) THIRD PARTY RIGHTS and obligations
THIRD PARTY BENEFICIARIES: Incidental TPB don’t have K rts,
only intended TPB’s do. No cancellation or modification after
TPB’s rts have vested by either relying, assenting or suing for
enforcement.
ASSIGNMENT OF RIGHTS: one party transfers rts under K to
assignee. Language important: If K states “Rights under this K
are not assignable” → Assignment is still valid. Assignor is
liable for breach but assignee who doesn’t know of prohibition
can enforce. BUT, if K states “All assignments under this K are
void”→ assignments are invalidated.
Gratuitous assign: can be revoked; last gratuitous assign wins.
Assign for consideration: no recovery from obligor. Assignor
implies warranty that rt exists, rt is not subject to any defenses,
assignor won’t do anything to impair value of assignment. First
assign for consideration wins.
DELEGATION: allowed unless K prohibits delegation, K calls for
very special skills, or K has very special reputation. If 3rd party
doesn’t perform, delegating party always remains liable.
Delegatee liable only if she receives consideration from
delegating party, in which delegatee is liable to delegating party
and obligee.
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CRIMINAL LAW AND PROCEDURE
CRIMINAL LAW
GENERAL MATTERS
JURISDICTION: legal situs is where conduct or result of crime
happened, or should have happened.
MERGER: only solicitation and attempt merge into substantive
offense. No merger for conspiracy – separate crime.
ESSENTIAL ELEMENTS: physical act (actus reus): own volition,
but not reflective, convulsive or unconscious; and mental state
(mens rea).
SPECIFIC INTENT CRIMES: BAM ACTS. Burglary, Assault,
Murder (1st degree), Attempt, Conspiracy, Theft, Solicitation.
MALICE CRIMES: reckless disregard of obviously high risk of
harm. Murder/Arson.
GENERAL INTENT CRIMES: awareness of all factors constituting
crime, e.g. awareness of act or high likelihood it will occur
STRICT LIABILITY: no required awareness
TRANSFERRED INTENT: two charges – attempt and offense.
ACCOMPLICE LIABILITY
LIABILITY: crime itself and all foreseeable crimes. Req’s active
involvement, e.g. aid, counsel or encourage, with intent to aid.
INCHOATE OFFENSES
SOLICITATION: asking someone to commit crime. Req’s intent
for person to commit the crime. Crime ends at the asking – if
person subsequently commits the crime it becomes conspiracy.
CONSPIRACY: (i) Agreement; (ii) intent to agree; (iii) unlawful
objective. Maj jxs require overt act.
Liability: all foreseeable crimes committed to further consp.
Withdrawal: (i) affirmative act notifying all members of
withdrawal and (ii) assistance in neutralizing.
ATTEMPT: SI to commit + substantial step beyond mere prep
DEFENSES NEGATING CRIM CAPACITY
INSANITY: Def to all, incl Strict L. D - burden of production.
M’Naghten – at time of conduct, D lacked ability to know
wrongfulness of actions or nature/quality of actions;
Irresis Imp – D lacks capacity for self-control & free choice
Durham Rule – D’s conduct product of mental illness;
MPC/ALI – D lacked capacity to (i) appreciate criminality of
conduct or (ii) conform conduct to req’ts of law.
INTOXICATION: Volun– only def for Specific Intent. Invol– like
insanity and is def to all, incl SL. Req’s: taking drugs/alcohol
w/o knowledge; under duress; pursuant to med advice w/o
awareness of intoxicating effect.
INFANCY: < 7, no liab. < 14 – rebuttable presumption of no liab.
EXCUSES/JUSTIFICATION
SELF DEFENSE: Non-deadly –reasonably necessary. D – (i) D
w/o fault; (ii) confronted w/ unlawful force; (iii) threatened w/
imminent death/great bodily harm. Min - retreat unless in
person’s home; making lawful arrest; or vic of rape/robbery.
Orig aggressor must withdraw and communicate withdrawal.
DEFENSE OF OTHERS: person assisted reasonably appeared to
have legal rt to use force in his own defense.
DEFENSE OF PROPERTY: non deadly force ok. No force to
regain possession unless in hot pursuit.
CRIME PREVENTION: Non deadly force to prevent felony or
breach of peace. Deadly only to prevent dangerous felony.
EFFECTUATE ARREST: Private person: deadly force only if
person harmed was actually guilty of offense. Officer: deadly
force to apprehend fleeing felon who threatens death /serious
bodily harm and necessary to prevent escape.
DURESS: Threat of imminent infliction of death/great bodily
harm on self or member of immediate family. No homicide.
NECESSITY: reasonably necessary to avoid imminent and
greater injury to society. No homicide.
OTHER DEFENSES
IMPOSSIBILITY: Factual – no defense. Legal Impossibility – not
illegal to do what D intended to do.
MISTAKE OF FACT: Spec Int – any mistake. Malice/Gen Int::
reasonable mistake only. SL – never.
CONSENT: only if crime req’s lack of consent, e.g. rape. Req's
consent voluntarily/freely given; legally capable; no fraud.
ENTRAPMENT: only if police originated criminal design and D
was not predisposed to commit act.
OFFENSES AGAINST PERSON
BATTERY: unlawful application of force resulting in bodily
injury or offensive touching. Aggravated: deadly weapon;
serious bodily harm; to a child, woman or police.
ASSAULT: attempted battery (SI) ; threat to bodily injury (GI).
HOMICIDE: unlawful killing of human w/ malice aforethought:
intent to kill; intent to inflict great bodily injury; reckless
indifference to an unjustifiably high risk to life; felony murder.
First: deliberate, willful, and premeditated and enumerated
felony, e.g. arson, robbery, burglary, rape, mayhem and
kidnapping. Second: everything else under CL murder.
Unjustified. No felony murder once D reaches temp safety or if
death of co-felon is result of resistance by victim or police
MANSLAUGHTER: Bump down murder if “imperfect self-D” –
D was at fault in starting fight or unreasonably but honestly
believed in necessity. Vol – murder w/ adequate
provocation/heat of passion w/o time to cool; Invol – criminal
negligence, battery, or misdemeanor.
PROPERTY CRIMES
LARCENY: taking and carry away of personal prop of another by
trespass w/ intent to permanently deprive.
EMBEZZLEMENT: fraudulent conversion of personal prop of
another by a person in lawful possession of that property.
FALSE PRETENSE: Obtaining title to personal prop of another by
an inten’l false stmt of past or existing fact w/ intent to defraud
LARCENY BY TRICK: Obtaining possession to personal prop of
another by inten’l false stmt of fact with intent to defraud.
ROBBERY: Taking of personal prop of another from other’s
person or presence by force or threat of imminent death/injury
with intent to permanently deprive.
EXTORTION: obtain prop by threat of harm/exposing info.
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CRIMINAL LAW AND PROCEDURE
RECEIPT OF STOLEN PROPERTY: receiving possession and
control of stolen personal prop known to have been stolen by
another person with intent to permanently deprive owner.
OFFENSE AGAINST HABITATION
BURGLARY: Breaking and entering of a dwelling of another at
nighttime with intent to commit felony therein.
ARSON: Malicious burning of dwelling of another. Req’s
damage to structure.
CRIMINAL PROCEDURE
EXCLUSION
CONFESSIONS
5TH AM: Miranda for custodial (not free to leave)
interrogations (reas likely to elicit response). Unamb assertion
of rt to atty prohibits questioning unless accused initiates
resumption. NOT offense specific. Voluntary confessions made
in violation of Miranda are admissible to impeach.
WAIVER: must be knowing, voluntary & intelligent
6TH AM: Right to counsel: post-charge at critical stages of
proceeding. Offense specific.
14TH AM: requires confession be voluntary
ADMIS OF CO-D CONFESSION: redact all portions referring to
other D; confessing D takes stand and subj to cross; confession
of non-testifying D is being used to rebut the D’s claim that his
confession was obtained by coercion.
FRUIT OF THE POISONOUS TREE – Prohibits introduction of
evid obtained in viol of 4th, 5th, 6th Am. Exceptions: (i) stmts
in violation of Miranda; (ii) independent source; (iii) inevitable
discovery; (iv) intervening act of free will by D; (v) violation of
IDENTIFICATIONS (GROUNDS FOR ATTACK)
knock and announce. BUT, voluntary confessions in viol of
Miranda admissible to impeach and evid from illegal search can COUNSEL: 6th Am. for post charge line ups and show ups. No rt
to counsel at photo ID.
impeach D’s trial testimony.
GOOD FAITH DEFENSE: reliance on (i) judicial opinion; (ii) stat DENIAL OF DUE PROCESS: if unnecessarily suggestive or
substantially likely to present mistake.
or ordinance; (iii) defective search warrant.
REMEDY: exclude in-court ID. Negated if P can show adequate
GOOD FAITH NEGATED if: (i) affidavit so lacking in probable
independent source if identification, incl ample opportunity to
cause (“PC”) that no reasonable officer would rely on it; (ii)
observe person at time of crime.
warrant defective/invalid on face; (iii) affiant lied or misled
judge; (iv) judge wholly abandoned judicial role.
DOUBLE JEOPARDY
HARMLESS ERROR: admission of illegal evid will overturn
Attaches when jury is sworn or, if no jury, first witness is sworn.
conviction unless gov’t can show beyond a reasonable doubt
Does not apply to separate sovereigns.
that error was harmless.
EXCEPTIONS: hung jury; mistrial or manifest necessities; retrial
FOURTH AMEND - SEARCH AND SEIZURE
after successful appeal unless insufficient evidence to support
ARREST: PC + warrant if D in home; stop in car requires
verdict; breach of agreed plea; termination at behest of D on
reasonable suspicion, incl checkpoint and pretextual stops.
grounds not constituting acquittal.
VALID WARRANT: particularity of place searched/things seized
FIFTH AMEND PRIVILEGE AGAINST SELF-INCRIM
and issued by neutral and detached judicial officer.
Any nat person can assert, but only apply to testim disclosure.
CHALLENGE IF: affiant intentionally and recklessly included
LIMITATIONS: doesn’t apply to compulsory disclosure of docs;
material false stmt. But, good faith still applies.
SEARCH & SEIZURE: Three-Step Analysis: 1) does person have must be asserted at first instance of questioning on that subject,
including civil trials.
4th Am rt? (gov’t conduct and reasonable expectation of
privacy – requires standing, e.g. ownership or living in premises EFFECT: P can’t make negative comment on silence, unless D
asserts that D wasn’t able to tell his side of the story.
searched; overnight guest; but not items held out to public); 2)
ELIMINATED if: grant of immunity; no possibility of
search warrant valid?; 3) is there an exception?
incrimination (e.g. stat of limitations); waiver
Incident to lawful arrest: search contemporaneous in time
and place; limited to wingspan of individual.
MISC
Automobile: incident to arrest → interior compartment of car
PRE-TRIAL DISCLOSURE: P – disclose material, exculpatory
but not trunk; probable cause → full search, including any
evid; D – disclose use of alibi or insanity
containers.
Plain View: officer legitimately on premises
JURY TRIAL: rt if maximum auth sentence > 6 months.
Consent: voluntary and intelligent by someone who has
JURY: if 6, must be unanim. 9-3 ok. Jury pool must reflect fair
apparent equal right of use and access. Valid search even if
cross section of community. In Death Pen, may exclude juror w/
indiv did not have auth if police reasonably believed they did. absolute opposition that may prevent or subst impair perf.
Stop & Frisk: stop if reas susp of criminal act supported by
DEATH PENALTY: present all relevant mitigating evidence; no
articulable facts; frisk if reas suspicion that suspect is armed
automatic DP; only jury can determine aggravating factor
and dangerous but limited to finding weapons.
imposing DP.
Hot Pursuit/Evanescent Evid: may follow suspect into
PLEAS: Judge must address D personally re: nature of charge,
dwelling if in pursuit (should be within 15 min of suspect);
max possible penalty/mandatory min, that D has a rt to plead
seize evid that is likely to disappear
guilty but would wave rt to trial.
WIRETAPPING: if prob cause; named persons; description w/
OVERTURN PLEA if: plea involuntary; lack of jx; ineffective asst
particularity re: conversations; limited time; terminated when
of counsel; P fails to keep agreed plea bargain
info obtained; return to ct to show what was intercepted.
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EVIDENCE
FORM
prior consent btwn D and V. Civil – reputation, opinion, and
specific acts only if probative value substantially outweighs
unfair prejudice. If reputation, only if V put rep at issue.
OBJECTIONS: Calls for narrative, Unresponsive, Leading
Questions, Assumes facts not in evid, Argumentative,
Compound. Objections must be timely and specific or objection SPECIFIC ACTS: admissible to demonstrate MIMIC, subject to
balancing. (Motive, Intent, Mistake (not), Identification,
is waived.
Common Scheme/Plan)
PURPOSE
LOGICAL RELEVANCE: if it has any tendency to make a material
fact of consequence more or less probable than it would be
without the evidence.
Similar Happenings: typically irrelevant unless: used to show
causation; to show a pattern in fraudulent claims or a
preexisting condition; to prove intent; rebut defense of
impossibility; to show comparable sales relevant to establish
value; evid of habit; routine practice; industrial custom.
LEGAL RELEVANCE: If the probative value of the evidence is
outweighed by its prejudicial effect. - emotionally disturbing,
e.g. gory photograph or evidence that is admissible for one
purpose but inadmissible for another.
PRESENTATION
WITNESS COMPETENCY: Witness must have (1) Personal
knowledge: first hand sensory perception; (2) Present
Recollection; (3) Ability to communicate; and (4) Sincerity:
make oath or affirmation to tell truth.
DISQUALIFICATION: Only judges and jurors automatically
DQ’d. No DQ for insanity, religious belief or age, but may
affect credibility.
IMPEACHMENT
CONTRADICTION.
POLICY CONSIDERATIONS:
PRIOR INCONSISTENT STMT: cross or extrinsic evid if not a
collateral matter and W is given opportunity to explain or deny.
Must be under oath.
Liability insurance: inadmissible to prove culpable conduct, e.g.
negligence, or D’s ability to pay.
BIAS/INTEREST/MOTIVE: Cross exam or extrinsic evid if not a
collateral matter;
Subsequent remedial measures: safety measures or repairs after
accident inadmissible to prove culpable conduct or, if products
liability, defective product design.
Settlement offers: not admissible to prove liability or guilt if a
claim is asserted. Not severable from other statements.
PRIOR CONVICTION: Fed - felonies and misdem involving false
statements always ok unless over 10 yrs old. Felonies not
involving false statements ok subject to balancing;
misdemeanors not involving false statements NOT admissible.
If admissible, extrinsic evid can be used;
Offers to Pay Medical Expenses: inadmissible to prove liability
or guilt, but may be severed from other statements.
NON-CONVICTION ACTS: ok if involves lying, but no extrinsic
evid.
Criminal Pleas: offers to plea, and related statements are
inadmissible to prove guilt.
REPUTATION/OPINION RE: TRUTHFULNESS: extrinsic evid ok
or opinion of W;
CHARACTER EVIDENCE
CIVIL: Inadmissible to prove conduct unless character is at issue,
e.g. defamation, negligent entrustment, child custody. Opinion,
reputation, and specific acts can be used. Prior sexual assaults
or child molestation are admissible to prove conduct.
CRIMINAL CE OF D: D must open door first, unless acts of prior
sex assault or child molest. If D offered CE of V, P can offer
evid of D’s same trait. P can rebut pertinent CE if D opened the
door. Direct Exam: only reputation and opinion. Cross Exam:
reputation, opinion, specific acts, but no extrinsic evid.
CRIMINAL CE OF V: Prosecutor can’t first offer CE, unless
homicide case where D alleges self defense, but P can offer V’s
peacefulness. D can open door with CE of V, and P can rebut
only with D’s same character trait. Direct Exam: only
reputation and opinion. Cross Exam: reputation, opinion, and
specific acts, but no extrinsic evid.
RAPE SHIELD: Crim – reputation and opinion not allowed for V.
Specific acts ok to show 3rd party source of physical evid or
SENSORY DEFICIENCIES.
DOCUMENT RELIABILITY
AUTHENTICATION: Signatures – admission, eyewitness
testimony, expert opinion, lay opinion by someone familiar with
sig, circumstantial evid, genuine exemplar (known sig
compared to sig admitted).
Self Authenticating: certified public docs, acknowledged docs,
official pubs, newspapers, periodicals, business records, trade
inscriptions.
Photos: must fairly and accurately depict what it is purporting to
show at time of event.
Non-unique items: chain of custody.
Best Evidence Rule: Evidence is being offered to prove contents
of a writing. Originals and duplicates ok. Testimony ok only if
original was lost or destroyed, unless bad faith by proponent of
testimony.
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EVIDENCE
OPINION TESTIMONY
LAY OPINION: admissible if based on W’s perceptions and
helpful to trier of fact. OK to show speed of auto, sanity,
intoxication, emotions, value of W’s property. No legal or
scientific opinions requiring specialized knowledge.
EXPERT OPINION: Hot Quiznos for Cold Penguins. Req’ts:
Helpful to the jury; Qualified; supported by proper Factual
basis; reasonable degree of Certainty; based on reliable
Principles that were reliably applied – Fed/Daubert standard:
Peer reviewed and published scientific journals; tested and
subject to retesting; low error rate; reasonable level of
acceptance. .
close privity-like relationship with earlier party, e.g. predecessor
in interest.
Dying Declaration: only in civil and homicide cases by one
believing he is about to die and describing cause or
circumstance leading to injury.
Stmt against interest: At time made, against pecuniary, penal or
proprietary interest. If used to exculpate, must have
corroborating evid. .
Personal/Family History: declarant must be family member or
close associate. Requires personal knowledge.
Stmt Offered Against Person Procuring Declarant Unavail: only
if person offered against engaged or acquiesced in intentional
wrongdoing.
JUDICIAL NOTICE: Generally known in jx OR capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned. Civil – judicial
notice is conclusive. Crim – jury may but doesn’t need to
accept.
EXCEPTIONS - UNAVAILABILITY IMMATERIAL: (PAPERS PBJ)
Present Sense Impression: While perceiving event or
immediately thereafter.
Ancient Docs: 20 years
Past Physical Condition for Med Diagnosis: If made to medical
BURDENS OF PROOF: Crim – beyond a reasonable doubt. Civ – professional to assist in diagnosis or treatment. Only statements
preponderance of evidence. Presumptions. Shifts burden to
re: cause or source.
party against whom presumption is asserted.
Excited Utterance: During or soon after startling event while
HEARSAY
under stress of excitement of event.
Out of court statement offered to prove the truth of the matter
Recorded Recollection: W once had personal knowledge; doc
asserted in the statement. Usually inadmissible.
made by W under W’s direction or adopted; Written or adopted
when memory was fresh; accurate when made; W now doesn’t
remember
EXEMPTIONS: admissible b/c not hearsay.
State of Mind: Present mental, emotional, sensation or physical
FACTS OF INDEPENDENT LEGAL SIGNIFICANCE.
condition. Only if state of mind is directly at issue and material
EFFECT ON HEARER: knowledge or notice.
or to establish intent (circumstantial evid that intent was carried
SPEAKER’S KNOWLEDGE OF FACTS.
out)
CIRCUMSTANTIAL EVID OF STATE OF MIND.
Public Record: record describing activity of office, describing
matter observed pursuant by duty imposed by law. Record
ADMISSION BY PARTY OPPONENT: not subject to personal
contains factual findings from investigation made pursuant to
knowledge req or the opinion rule.
authority granted by law. (Prosecution can’t use).
VICARIOUS PARTY ADMISSION: Employee – if authorized
Business Record: record of event, condition, opinion or
spokesperson or w/in scope of employment and during
diagnoses
kept in regular course of business, made at or near
employment relationship. Auth can be express or implied.
time of matter described.
ADOPTIVE ADMISSION: silence admission if: party heard and
Judgment of Previous Conviction: Judgment of felony
understood, was physically and mentally able to deny,
conviction (e.g., copy of judgment of conviction) admissible in
reasonable person would have denied.
both civil and crim case to prove any fact essential to judgment,
PRIOR INCONSISTENT STMT UNDER OATH. Used for
but when offered by prosecution for purposes other than
impeachment and substantive proof.
impeachment, judgments against person other than the accused
are inadmissible.
PRIOR CONSISTENT STMT TO REBUT CHARGE OF LYING: if
made before bribe or inconsistent stmt as substantive proof or to Learned treatises:std scientific treatise or authoritative work if
bolster credibility.
relied on by expert in direct or called to attn of expert on cross.
PRIOR STMT OF ID: ID made after perceiving him.
Misc: vital stats, prop interest docs, , family records, market
reports.
EXCEPTIONS: hearsay but still admissible
FEDERAL CATCH-ALL: Guarantees of trustworthiness; strictly
necessary; and notice given to adversary as to nature of stmt.
EXCEPTIONS REQUIRING UNAVAILABILITY:
CONSTITUTIONAL ISSUES: Even if not inadmissible b/c of
Requires privilege, death/illness, proponent cannot procure by
process or other reasonable means. Refusal to testify despite ct hearsay, Confrontation clause can make statement inadmissible
against D in a crim case. Testimonial stmts are inadmissible
order, failure of memory.
unless the declarant is unavailable AND the D had an
Former Testimony: party against whom offered had opportunity
opportunity to cross the declarant when the stmt was made.
and motive to conduct exam. In civil case, party must have
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EVIDENCE
Only in crim cases and only when the prosecution is offering
the evid.
PRIVILEGES
ATTORNEY/CLIENT: Communication btw attorney and client, or
rep, intended by client to be confid and made to facilitate legal
services, is privileged, unless waived by client. Purpose must
be to procure prof legal service. Cannot be made in presence of
3rd party, unless unknown eavesdropper. Applies to comms
from employee/agent if corp authorizes them to comm.
Privilege extends beyond client’s death. Not applicable to
malpractice action.
PSYCHOTHERAPIST-SOCIAL WORKER /CLIENT: Comm btwn
patient and psych, intended by client to be confid, and made to
facilitate rendition of prof psych services, is privileged, unless
waived by patient.
DR/PATIENT: doesn’t apply if patient puts physical condition in
issue, physician’s services sought to aid in crime, or case alleges
breach of duty arising out of relationship.
SPOUSAL PRIVILEGE: Testimonial – in crim cases, W may
refuse to testify against spouse. Can be waived by testifying
spouse. Doesn’t apply in crim case where spouse is charged w/
crime against spouse or kids. Requires legal marriage at time of
trial. Confidential Communication: protects all communications
during marriage. Requires legal marriage at time of
communication. Both spouses hold and can prevent testimony
of the other.
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Federal Evidence Charts
Hearsay Exemptions
Statements not Offered for Truth
Admissions
Type
Facts of Independent
Legal Significance
Federal
Statement has words forming legal significance based in substantive law, e.g. forming a
contract or stating that transfer of title is a gift.
Effect on Hearer
In negligence case, words that show knowledge or notice on the part of the listener or is
relevant to the issue of motive.
Speaker’s Knowledge
of Facts
Statement proves the writer had knowledge of the facts and shows connection to the claim
at issue
Circumstantial
Evidence of State of
Mind
Statements used to demonstrate that the declarant believed them to be true, to demonstrate
insanity or knowledge.
Admission by Party
Opponent
Statements of admission made by a party, or someone attributable to a party, offered by a
party opponent.
• Personal knowledge not required
• Opinion rule barring statements of legal conclusions inadmissible
Vicarious Party
Admission
• Employees
• An authorized spokesperson
• Employee of a party concerning a matter within the scope of his employment and
made during the employment relationship
• Co-conspirators in furtherance of a conspiracy to commit a crime or civil wrong.
• Partners made within the scope of partnership
Silence may be an admission if:
• Party heard and understood
• Party was physically and mentally capable of denying
• Reasonable person would have denied the accusation.
Adoptive Admission
Prior Statements
Prior Inconsistent
Statement Given
Under Oath
Inconsistent statement must be made under oath at a prior proceeding or deposition and is
admissible for impeachment and as substantive proof. (distinguish between prior testimony
requiring unavailability)
Prior Consistent
Statement Offered to
Rebut Charge of W’s
Lying or Exaggeration
A consistent statement is admissible if made before an alleged bribe or inconsistent
statement and can be used as substantive proof or to bolster credibility.
Prior Statement of
Identification
Statements of identification made after perceiving him (does not require oath or formal
proceeding).
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Federal Evidence Charts
Hearsay Exceptions
Requiring Unavailability
UNAVAILABILITY:
Privilege, Death or Illness, Proponent can't procure attendance by process or other reasonable means.
Federal
- Refusal to testify despite court order
- Failure of memory
Type
Former Testimony
Federal
• Party against whom testimony is now offered had an opportunity to examine and similar
motive to conduct the examination.
• In civil case, party against whom testimony is now offered was not a party but has a close
privity-like relationship with the earlier party (predecessor in interest)
Dying Declaration
• Admissible only in civil and homicide cases
• Made by one believing he is about to die
• Describing cause or circumstances leading to impending death
Statement Against
Interest
• At time made, against pecuniary, penal or proprietary interest
• If offered to exculpate accused, must have corroborating evidence
Personal or Family
History
• Concerning birth, marriage, divorce, death, relationship, etc.
• Declarant must be family member or closely associated
• Personal knowledge required
Statement Offered
Against Person
Procuring Declarant’s
Unavailability
Admissible if party against whom offered engaged or acquiesced in intentional wrongdoing to
procure unavailability.
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Federal Evidence Charts
Hearsay Exceptions
Unavailability Immaterial
P.A.P.E.R.S. P.B.J.
Type
Present Sense
Impression
Ancient Documents
Federal
• Made while perceiving an event or immediately thereafter
Authenticated document over 20 years old
Past Physical
Condition for
Medical Diagnosis/
Treatment
• Past bodily condition if made to medical personal to assist in diagnosing or treating
• Cause or source of condition also admissible if pertinent to diagnoses or treatment
Excited Utterance
• During or soon after a startling event
• Made under stress of excitement of event
• Concerning immediate facts of event
Recorded
Recollection
•
•
•
•
•
•
•
State of Mind
(Present)
W once had personal knowledge
Document made by W under W’s direction or adopted by W
Written or adopted when memory is fresh
Accurate when made
W now has insufficient recollection
State of mind, emotion, sensation, or physical condition
Admissible only when state of mind is directly in issue and material OR to establish intent of
person and as circumstantial evidence that intent was carried out.
• PRESENT TENSE!
Public Records
• Record describing activities of office
• Describes matters observed pursuant to duty imposed by law (prosecution cannot use this)
• Record contains factual findings resulting from investigation made pursuant to authority granted
by law, unless untrustworthy (prosecution cannot use this)
Business Records
•
•
•
•
Records of events, conditions, opinions or diagnoses
Kept in regular course of business (not in preparation for litigation)
Made at or near time of matter described
By person with personal knowledge or w/in personal knowledge of one w/ business duty to
transmit info to the entrant
• Regular practice to make such recording
• NOTE: police records may fall under this category in civil cases but not criminal
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Federal Evidence Charts
Hearsay Exceptions
Unavailability Immaterial…Continued
P.A.P.E.R.S. P.B.J.
Type
Judgments of Prior
Convictions
Vital Statistics
Property Interest
Documents
Learned Treatises
Federal
• Felonies: admissible in criminal and civil to prove fact essential to judgment but not if plea of
nolo contendre
• No misdemeanors
• Substantive evidence only re: the accused
• Impeachment for anyone
Births, deaths, marriages made to public office as required by law
Deed, will, or other document affecting property interest admissible regardless of age
• Standard scientific treatise or authoritative work as substantive evidence
• Called to attn of expert W on cross or relied upon by expert W on direct
• Established as reliable authority
Family Records
Personal or family history in family Bibles, genealogy, urns, tombstones
Market Reports
Published compilations like lists or directories
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Federal Evidence Charts
Character Evidence (Offered to Prove Conduct)
Civil Cases
• Character evidence inadmissible to prove conduct
• EXCEPTION: prior acts of sexual assault or child molestation are admissible to prove conduct
• EXCEPTION: where character is at issue in the case, all evidence (opinion, reputation, and specific acts) are admissible.
Cases to which this applies are:
o
Defamation
o
Negligent entrustment
o
Child Custody
Criminal Cases on Character Evidence of DEFENDANT
• P cannot first offer CE.
• EXCEPTION
- Sexual assault or child molestation cases where
prior acts of same are admissible.
- Where D has offered character of V, P can be first
to offer evidence of D for the same trait.
• D can offer CE to prove or disprove conduct
• P can rebut on pertinent character trait of D.
• On direct, only reputation and opinion.
• On cross, reputation, opinion or specific instances. But no extrinsic evidence.
Criminal Cases on Character Evidence of VICTIM
•
•
•
•
P cannot first offer CE.
EXCEPTION: in homicide case, if D alleges self-defense, P may offer evidence of V’s character for peacefulness.
D can offer CE of V.
P can rebut, but only with D’s same character trait.
• On direct, only reputation and opinion.
• On cross, reputation, opinion or specific instances. But no extrinsic evidence.
Rape Shield
• Criminal
- Reputation and opinion not allowed for V.
- Specific instances admissible to show third party source of semen or injury or prior acts of consent between D
and V.
• Civil
- Reputation, opinion and specific instances admissible if probative value substantially outweighs unfair
prejudice and, with regard to reputation, if V put reputation at issue.
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Federal Evidence Charts
Methods of Impeachment
(Offered to Discredit Credibility)
Impeachment by Contradiction
Impeachment by Prior Inconsistent Statement
• Prove by
- Cross Examination
- Extrinsic evidence (if not a collateral matter)
• If admitting extrinsic evidence, W must be given an opportunity to explain or deny inconsistency.
Impeachment by Evidence of Bias, Interest or Motive
• Prove by
- Cross Examination
- Extrinsic evidence (if not a collateral matter)
• W must be asked on cross about facts showing bias or interest before admission of extrinsic evidence. If admitted on
cross, admission of extrinsic evidence is at court’s discretion.
Impeachment by Prior Convictions (if allowed, extrinsic evidence is admissible)
• Crimes involving false statements:
- Felonies and misdemeanors involving false statements are always admissible to impeach.
- EXCEPT: if conviction or release from prison is over 10 years old, then subject to balancing
• Crimes not involving false statements
- Felonies are admissible, subject to balancing
- Misdemeanors are NOT admissible.
• If admissible, extrinsic evidence can be used.
Impeachment by Non-Conviction Bad Acts
• Admissible in civil and criminal if act involves lying.
• No extrinsic evidence.
Impeachment with Reputation and Opinion Regarding Truthfulness
• Extrinsic evidence is admissible (calling another witness)
• Opinion of W is admissible
Impeachment with Sensory Deficiencies
• Cross examination or extrinsic evidence
• Shows faculties of perception or recollection are impaired or that W lacks personal knowledge
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FAMILY LAW
PRE-MARRIAGE
Interspousal Immunity: Allowed to sue spouse unless it is for
private activity.
PRE-MARITAL AGREEMENTS: K in contemplation of marriage re:
economic matters in case marriage fails. Governed by Uniform TORTUOUS INTERFERENCE WITH MARRIAGE: May seek
damages for loss of consortium.
Premarital Agreement Act.
TERMINATION OF MARRIAGE
Req'ts: (1) freely made (no duress); (2) In writing; and (3) signed
by both parties; (4) full financial disclosures; (5) fair and
5 WAYS TO TERMINATE
reasonable econ provisions. Agmt may not set forth grounds for
DECLARATION OF NULLITY: Marriage void if bigamy or incest,
divorce or agree in advance to divorce. Must not be
unconscionable. Contingent on subsequent marriage, and void if blood relation, non-age subject to collateral attack. Anyone can
attack void marriage.
couple doesn't wed. Ind counsel not required, but agmt more
enforceable.
ANNULMENT: May set aside voidable marriage if impediment at
Child Custody Premarital K's: always subject to judicial review. time of marriage. Action must be brought by H&W, and
marriage valid until set aside. Voidable if:
Spousal support: pre-nup agmts for spousal support not enforced
Non-age: 18+, but can be waived for good cause or if coif it makes one spouse poor.
habitate beyond 18.
Gifts in contemplation of marriage: (e.g. engagement ring)
Mental incapacity: At time of marriage – mental illness, or
recoverable by other party if no wedding.
developmental disability leading to inability to consent
Breaking engagement: not actionable in any state.
Waivable if co-habitate after regained capacity.
NON-MARITAL CHILDREN: If child conceived before marriage,
Duress: Forced to marry (e.g. shotgun wedding). Waivable if
but born after marriage → marital child. Non-marital child has
continue to co-habitate after duress over.
same rights as marital child – can inherit, get econ support from
biological parents, bring wrongful death suit, participate in gov Fraud: Misrep or conceal info going to essential aspect of
marriage (e.g. religion, sex/ability to procreate, but NOT
programs, etc.
wealth), and likely to deceive reasonable person. Waivable if coMARRIAGE
habitate after truth known.
WHO MAY MARRY? (1) must be mutual consent; (2) must have Incurable Physical Incapacity: Can't safely have sex. Waivable
mental capacity; (3) parties must be of legal age (or with
by other spouse.
parental or judicial approval); (4) single; (5) of the opposite sex
DIVORCE: 5 grounds:
(as of 2013, same-sex legal in CT, IA, ME, MA, NH, NY, VT,
WA); (6) no close relation.
(1) Cruel & Inhuman Treatment: Physical and/or emo/mental
abuse. Likely need to show > 1 occasional for emo/men abuse.
PROCEDURAL REQ'TS: Obtain license and participate in
solemnization ceremony by clergy or judge. No duress, may not (2) Adultery: Voluntary sex or deviant conduct with another
person. If in dispute, requires additional testimony other than
be under the influence.
spouse.
CEREMONIAL MARRIAGE: Req'ts – (1) solemn vow to wed (2)
before officiant; and (3) witness (usually 1 each).
(3) Desertion: Unjustifed and permanent departure for > 1 yr.
Constructive desertion = forsaking marriage without leaving
(e.g. no sex).
COMMON LAW MARRIAGE: Must have consenting parties with
capacity, and make a circumstantial showing of marriage. CL
marriage evidenced by co-habitation and holding out as husband (4) No-Fault Divorce: Allows unilateral decision by one spouse
& wife in public. Abolished in most states. But, if recognized in that marriage irretrievable. Must testify under oath, and show
relationship broken down irretrievably, or irreconcilable
marriage state, receives full faith and credit in other states.
difference. Must be separated for > 6 months.
MARITAL CONSEQUENCES
(5) Voluntary Drug addiction/Alcoholism: Must be voluntary,
RESPONSIBILITIES:
gross and confirmed. Some states req certain number of yrs.
Sexual exclusivity
(6) Insanity: Spouse must become mentally ill, and illness lasts
Economic support of one another: requires fair and reasonable
support, based on resources of each party. MUST always
support spouse so that they do not become public charge (needs
test). Further support based on means to pay (means test).
RIGHTS:
Each retain separate identities for legal purposes: own prop in
indiv names, have sep domiciles, have sep surnames, liable for
violence against other, liable for negligence against the other,
prosecuted for crimes against spouse, incur independent debts.
EXCEPTIONS: (i) if spouse acts as agent for other, may be
liable for debts of principal; (ii) if incur debt for necessities,
other spouse may also be liable.
for long period of time. Some states req institutionalization; and
some req support obligation.
DEFENSES to Fault Grounds: i) recrimination (dirty hands – i.e.
spouse also cheating); (ii) condonation (waiver – knowledge +
forgiveness); (iii) connivance (entrapment – i.e. was induced
into adultery); collusion (fraud on the ct: agreeing to grounds
that do no exist.)
LEGAL SEPARATION: want to live apart with econ rts adjudicated,
yet retain H&W status.
Grounds: Same as divorce PLUS failure to support
economically.
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FAMILY LAW
DISSOLUTION: same result as divorce, but fault issues not
considered, and no ct involvement until agmt reached.
Considerations in Equitable Division of Marital Prop: (1) loss of
health insurance; (2) loss of inheritance rts; (3) need of custodial
child to occupy home; (4) duration of marriage; (5) education;
JURISDICTION
(6) incomes; (7) earning capacity; (8) health; (9) assets and
SUBJECT MATTER JX: If one spouse domiciled in a state, there is liabilities; (10) contribution to acquire prop; (11) homemaker
jx for that state to adjudicate marriage. Look to domicile for at contribution.
least 90 days.
CHILD SUPPORT
PERSONAL JX: PJ over D required for collateral orders (e.g.
DUTY OF PARENTS: Both parents have duty to provide support
alimony, child support).
typically until 18 (varies).
FULL FAITH AND CREDIT: FF&C given if spouse domiciled in
DUTY OF NON-PARENTS: Liability for support extends to:
issuing jx.
(i) Parent who relinquishes control still liable for support until
TERMINATION OF MARRIAGE:
child adopted; (ii) Person who acted as parent and created
ECONOMIC RESULTS
reliance.
MAINTENANCE (ALIMONY)
TYPES:
AMOUNT: Calculated based upon % of income and # of
children.
Temporary: Maintains status quo. Economically weaker spouse MODIFICATION: May seek modification if substantial change in
can petition court for maintenance while case in process. Ct may financial situation, child care costs, age of child, relative income.
ENFORCEMENT: Same as for maintenance.
award this and figure out the amount by formula (can adjust)
Permanent Periodic: Ct considers numerous factors in awarding
maintenance, including: (i) whose fault; (ii) age/health; (iii)
education/earning capacity; (iv) marital duration; (v) whether
custody affects ability to work. Parties may negotiate
maintenance terms.
JURISDICTION: Out of state child support orders fall under
Uniform Interstate Family Support Act (“UIFSA”).
UIFSA – Provides that once initial support order entered, all
states must defer to that order, and initial state has exclusive jx.
Exclusive jx continues as long as child or one parent resides in
that state.
Rehabilitative: awarded by Ct to assist spouse in obtaining edu
or job training. Ct considers (i) whether paying spouse obtained
CHILD CUSTODY
greater edu or job skills during marriage, and whether payee
SEPARATION AGMTS RE CHILDREN: enforced if in child's best
provided support for other spouse to do so.
interest.
Can be merged with the divorce, but if not, it is a
Lump sum; Reimbursement.
separate K.
ENFORCEMENT: if payments cease, court can seize and sell prop,
CUSTODY STANDARD: Custody determination made through
take away driver's license, revoke prof licenses, attach prop,
application
of “Best Interests of Child” standard. Cts consider:
send to jail.
(i) keeping kids together (ii) what child wants; (iii) both spouses'
MODIFICATION: allowed, but must show substantial change in
marital and living situation; (iv) edu/fin position of parents; (v)
circumstances. BUT, if maintenance provided for in separation health of parties; (vi) history of domestic violence.
agmt, must show extreme hardship. Mod only prospective, no
NON-PARENT V. PARENT CUSTODY: Presumption that best
arrears.
interest of child to be with bio parent. Unless showing of
TERMINATION: terminates with death of either party, or spouse extraordinary circumstances or non-fitness of bio parents. Goes
receiving payments re-marries. Co-habitation with new person beyond best interest of child standard.
not typically enough to term.
JOINT CUSTODY: each parent gets sig, but not necessarily equal
DIVISION OF PROPERTY
time with child. Must have freq, continuing, and meaningful
contact w/both.
Done through Equitable Distribution of assets.
PROCESS: First classify assets (separate or marital), then
distribute.
VISITATION: If lose custody, bio parents always get visitation.
NOT contingent on payment of child support. Look to wishes of
child, parents, and family relationships. Child's pref given
greater weight if > 12. No willful denial of visitation rts.
SEPARATE PROPERTY: (i) prop owned before marriage; (ii)
gifts/bequests to spouse during marriage in their name only; (iii)
Grandparents: may be given visitation, but may be UnQ for Ct to
prop spouses agree to be SP; (iv) personal injury award; (v)
override fit parent's decision to prevent visitation.
appreciation in value of any of the above. UNLESS due to
active effort of other spouse.
Enforcement: may be help in contempt.
MARTIAL PROPERTY: equitably divided community property.
RELOCATION: Custodial parent must get permission from ct and
Specifically (i) prop acquired during marriage; (ii) gifts made in show it's in child's best interest to relocate.
contemplation of marriage; (iii) vested intangibles (e.g. stocks,
MODIFICATION: Custody may be modified and reassessed under
pensions); (iv) value of prof license acquired during marriage.
same standards above. Must prove substantial change in the
Some courts equitably divide both separate and community
circumstances of moving party.
property.
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FAMILY LAW
JURISDICTION: In all states, divorce cts authorized to make
custody awards. Ct has jx to initially enter or modify custody
award if in child's home state.
TERMINATION OF PARENTAL RTS: Grounds: (1) Abandonment;
(2) Neglect ; (3) Abuse. State must prove by clear and
convincing evid.
Child's Home State: Look to child's home for > six consecutive
ADOPTION
months, home within the last six months, and whether one parent
JURISDICTION: Where parent and child domiciled for 6 months,
still located in home state.
where potential parent is located, where there's substantial evid
CONFLICT OF LAWS: Out of state custody orders controlled by
of child's care, adoption location, child's connection with the
Uniform Child Custody Jurisdiction and Enforcement Act
state, adoptor's state.
(“UCCHEA”). State issuing initial order has continuing
WHO CAN ADOPT? Almost any adult.
exclusive jx. Other states must defer.
WHO CAN BE ADOPTED? Almost any child or adult if bona fide
UNMARRIED CO-HABITANTS
intent to establish parent-child relationship.
K RTS: Contractual rts but sex can't be only consideration.
CONSENT: Generally needed, but not always from father is not
Implied Ks not likely enforced.
married. Consider his involvement in child's life. Parents may
CHILDREN
not withdraw consent after adoption decree entered.
PRESUMPTION: Rebuttable presumption that husband is father METHODS: Either through licensed agency, or independent
of child born during marriage.
placements. Ind placements typically require attorney or other
intermediary defined by state law.
LEGITIMATION: Father of non-marital child may use DNA to
prove paternity and gets over child.
ADOPTION ALTERNATIVES
LITIGATION OF PATERNITY: Suit may be brought by other
ASSISTED REPRODUCTION: In vitro fertilization; egg and
parent, child, or state to establish duty of support. SOL tolled til embryo donors; intrauterine insemination.
18.
Uniform Parentage Act: Under UPA, if woman consents to
Evidentiary Issues – Paternity must be proved by clear and
assisted inception and gives birth, her and husband are legal
convincing evidence. May consider resemblance and med tests. parents. Donor of sperm or eggs no legal rts whatsoever to
If fail to prove, records may be sealed.
child.
DUE PROCESS: Father has due process rt to show full
SURROGACY ARRANGEMENTS: written gestational agmt w/
commitment to parenthood. If child newborn, dad must be
adult woman to bear child through assisted reproduction. Ct
willing to take custody.
must approve before conception or agmt unenforceable.
Gestational mother resp for fetus health decisions. Must notify
PARENTAL TORT RTS: Unmarried mom can recover in tort for
ct upon birth.
death of child, but not father unless legally recognized.
DISCRIMINATION LIMITATIONS: If discriminate against
illegitimate children, state must have interest substantially
related to an important government purpose. Laws intended to
punish will likely be stricken
PARENT, CHILD AND STATE
LEGAL DISABILITIES OF CHILD:
Property: can own & convey, but can disaffirm upon majority.
K: can enter & enforce and disaffirm upon maj except for
necessaries.
Med Care: requires parental consent, except for abortion, birth
control, STD treatment. State can override parent decision if
would be irremediable injury to child.
Tort: liable for own torts
Crim Acts: juvenile delinguency
Wills: Can't create valid will.
INTRAFAMILY TORT IMMUNITY: Some states give parents a duty
to support child and child duty to support elderly parents. Some
states give immunity but not for intentional conduct.
CONSTITUTIONAL RTS: Parents have rt to control upbringing,
but the state has an interest against child abuse or neglect and
education.
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FEDERAL CIVIL PROCEDURE
AUTHORITY TO DECIDE?
PERSONAL JURISDICTION (JX)
TRADITIONAL: D domiciled in forum; personally served while
present in forum; express or implied consent to jx
LONG ARM STATUTE: assume statute reaches constitutional
limit.
CONSTITUTIONAL ANALYSIS: Does D have such minimum
contacts with the forum so that exercise of jx doesn’t offend
traditional notions of fair play and substantial justice? My
Parents Frequently Forgot to Read Chlidren’s Stories:
Minimum contacts: Purposeful availment + Foreseeability.
Fairness: Relatedness + Convenience + State’s Interest.
Relatedness: Specific = D’s specific contact with forum.
General = D had continuous and systematic ties with forum.
SUBJECT MATTER JX (FED)
DIVERSITY: Complete diversity + Amt in Controversy > $75K.
AGGREGATION: Ok to agg claims of one P against one D, but
not two claims by two or more Ps against two or more Ds.
FEDERAL QUESTION: “arises under” federal law.
SUPPLEMENTAL JX: “common nucleus of operative fact”
BUT, P cannot use supp jx in diversity case to overcome lack of
diversity.
REFUSAL: FQ is dismissed early on; state claim is complex;
state law issue predominates.
REMOVAL: D can remove if case could be heard in fed ct under
subject matter jx. All Ds must agree. No removal by P, if more
than a year passed since case was filed, or in a diversity case
where any D is a citizen of the forum. Once D files permissive
counterclaim in state ct, he can’t remove.
VENUE
LOCAL ACTIONS: anything re: land.
TRANSITORY: District in which all Ds reside; if same state but
diff districts then any district where one resides; OR subst part
of claim arose. Corp’s reside anywhere it does business.
WAIVER BY MAIL: Process mailed to D; formal service waived
if returned in 30 days. If no return, personal or sub service
req’d.
IMMUNITY: If in state as W or party.
WHAT LAW GOVERNS THE DISPUTE?
ERIE DOCTRINE: In div and supp jx cases, Fed Ct. must apply
state substantive law: SoL; choice of law rules; elements of
claim/defense; rules on tolling SoL. But Ct. uses Fed Proc.
Law. If substantive law, analyze if outcome determinative
(SL) ; balance of interest; avoid forum shopping (SL). If fed
conflicts (Fed law prevails)
ARE PLEADINGS PROPER?
RULE 11: atty must sign all pleadings, etc. to certify that: no
improper purpose; legal contentions are warranted by law;
factual contentions and denials have evidentiary support. Can
be raised by opp party w/ 21 day safe harbor OR by ct sua
sponte (Fed, no safe harbor; St, 21 days).
CLAIM: Must plead FACTS supporting plausible claim enough
to put D on notice and prep reasonable response
(Iqbal/Twombly standard) + basis of SMJ + demand for relief.
D RESP: Motion for more def stmt/motion to strike. Motion or
Answer - Waivable: lack of Pers Jx; improper venue;
insufficient process or service. Non-waivable: failure to state
claim, failure to join indispensable party; lack of SMJ. Answer:
must respond (admit, deny, lack info) + raise affirmative D
(SoL, SoF, res judicata, self defense).
DEFENDANT’S CLAIMS:
Counterclaims/Cross Complaint against P: Compulsory if arises
from same tx or occurrence.
Cross-Claim/Cross Complaint against Co-D: permissive if
arising from same tx or occurrence or under supplemental jx.
Impleader if by D/Cross Complaint against 3rd Party: No
diversity req’d for 3rd party practice btwn 3rd party D and 3rd
party P.
JOINDER: ARE PROPER PARTIES BEFORE CT?
TRANSFER: Consider convenience of parties and Ws and interest
PARTIES
of justice – public factors re: applicable law, what community
PERMISSIVE: Arise under same tx or occ + raise 1 common Q.
should bear burden of jury service.
COMPULSORY: 1) complete relief can’t be given to existing
FORUM NON CONVENIENS: Far more appropriate ct exists
parties without them; 2) disposition in party's absence may
elsewhere (ct dismiss w/o prej or stays case)- location of Ws
impair their ability to protect their own interest; or 3) their
and evid; undue hardship for D; avail of adequate alternative
absence would expose existing parties to double or inconsistent
forums; use of judicial resources; public policy. Applicable
obligations.
when transfer is impossible b/c ct is in diff jud system, but
HOW? If feasible, PJ + SMJ (keep diversity). Discretion of Ct.
never granted if P is resident of forum.
If unfeasible, Ct can proceed w/o. Look at alternative forum;
SERVICE
actual likelihood of prejudice; can ct shape relief to avoid
SUMMONS AND COMPLAINT. PERSONAL SERVICE; or
prejudice; whether P will be deprived of adequate remedy.
SUBSTITUTED SERVICE: Left with someone at D’s usual abode
INTERVENTION
and to someone of suitable age and discretion who resides there. Of Right: applicant has an interest in the property or tx and
SERVICE ON AGENT
action without him may impair ability to protect his interest.
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FEDERAL CIVIL PROCEDURE
Permissive: applicant’s claim or defense and the main action
have common question of fact in common; must have own jx.
CLAIMS
FED IMPLEADER: join 3rd party for indemnity/ contribution on
underlying claim.
INTERPLEADER: Instituted by P to determine who has a valid
claim to the stake. Under Fed Rule, interpleader must follow
regular federal question or diversity rules. Under statutory
rules, interpleader has special, simpler standards – diversity
between one claimant and $500 in issue, service nationwide and
venue properly where any claimant resides.
FED CLASS ACTION:
SMJ req’d. Req’t: (Nobody Can Touch Rocky's Apple)
Numerosity; Commonality; Typicality; and Representative is
Adequate.
TYPES: Prejudice – class treatment necessary to avoid harm to
class member or party opposing class; Injunction/Declaratory
Judgment – class members treated alike by other party;
Damages (most likely. ex. mass tort) – (i) common questions
predominate; (ii) class action is superior.
NOTIFICATION: If Damages class action: notify all identifiable
members that they can opt out, otherwise bound if they don’t
Can enter sep appearance. Class Rep pays.
SMJ: Fed Q or Div. If Div: only look to rep, no one else in
class. Trad = rep has complete div from Ds + Rep claim > 75K;
Class Action Fairness Act: SMJ if any class mem div from any
D, + more than 100 class mems, + aggregate claim > $5m.
SETTLEMENT: req’s ct app, notice to class, 2d chance to opt out.
DISCOVERY: HAVE PARTIES PROPERLY PROPOUNDED
AND REPLIED TO DISCOVERY?
SCOPE: relevant – reasonably calculated to lead to admissible
evid. Fed: relevant to claim or defense.
DEPOS: non-parties subpoenaed; parties req notice.
INTERROGATORIES: allow 25
REQUEST TO PRODUCE. REQUESTS FOR ADMISSION.
PHYS/MENTAL EXAM: ct order req’d.
DUTY TO SUPPLEMENT: Fed: if incomplete or incorrect,
response must be supplemented.
SANCTIONS: Partial or Total Violation. Cost or Contempt +
Extreme sanction for extreme violations: monetary sanctions;
strike pleadings; disallow evid; dismiss; default jgmt.
PRIVILEGE: Work Prod/Atty Work prod = mental impression,
conclusion, legal theories, opinions.
CAN DISPUTE BE RESOLVED WITHOUT TRIAL?
VOL DISMISSAL: Fed: P can vol dismiss before D serves answer
or mot w/o prej.
INVOL DISMISSAL: Failure to prosecute, or abide ct order.
SUMMARY JUDGMENT: Moving party: no genuine dispute of
mat fact. Opp party: show triable issue exists. Evid looked at in
light most favorable to non-moving party.
IF TRIAL, WHO DECIDES?
RECOVERY: if default, recovery limited to amt sought in
complaint.
JURY TRIAL: 7th Am. If law and equity, jury decides facts first in
law.
VOIR DIRE: Fed: unlimited strike for cause; each side gets 3
peremptory. 6-12 jurors, no alts. Req’s unanimous verdict.
MOTION FOR JUDG AS MATTER OF LAW/DIRECTED VERDICT:
D moves at close of P’s evid and close of all evid. P only move
at close of all evid. Std: Reasonable ppl couldn’t disagree.
RENEWED MOTION FOR JUDG AS MATTER OF LAW/JNOV: Fed:
party must bring Mot for Judg as Matter of Law FIRST.
MOTION FOR NEW TRIAL: Grounds: prejudicial error making
judgment unfair; new evid that couldn’t have been obtained
with due diligence; prejudicial misconduct; judgment is against
the weight of evid; excessive/inadequate damages that shocks
the conscience (remittitur: jury award too large, P chooses lesser
figure or new trial. Additor: state ct only; jury award too small,
P chooses greater amount or new trial).
APPEAL: File in the trial court.
FINAL JGMT RULE: Fed: decision on final merits of claim. All
Ds must agree. Den of motion for SJ; grant for new trial; grant
to remand to state ct. → NO FJ. Den of new trial; Grant or denof
renewed motion for judgment as matter of law → YES FJ.
EXTRAORDINARY WRITS
TYPES: Writ of Mandate: compel lower ct to do something law
requires. Writ of Prohibition: to stop a lower ct from doing
something the law doesn’t allow.
REQ’TS: Party will suffer irreparable harm if writ is not issued,
e.g. unusually harsh or unfair; normal appellate route is
inadequate; party has beneficial interest in outcome.
IS DECISION BINDING IN FUTURE CASES?
RES JUDICATA – CLAIM PRECLUSION
Claimant won Case 1 – res judicata merges cases. Claimant lost
Case 1 – res judicata bars the case. Req’ts: (i) Same parties; (ii)
ended in valid final judgment on the merits; (iii) Assert the same
cause of action/claim.
COLLATERAL ESTOPPEL – ISSUE PRECLUSION
(i) against someone who was a party in Case 1;
(ii) Case 1 ended in valid, final judgment on the merits;
(iii) issue actually litigated and determined;
(iv) issue essential to the judgment.
Who asserts?: Trad: mutuality req’d. Mod: Non-mutuality
Defensive: D can assert if P was party to prior case, but only if P
had full chance to litigate.
Non-mutuality Offensive: P can assert against D if not “unfair” –
full and fair opp to litigate; party could foresee multiple suits; P
couldn’t have been joined easily; no inconsistent judgments on
record.
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REAL PROPERTY
ESTATE CLASSIFICATION
PRESENT ESTATES
FEE SIMPLE ABSOLUTE: divisible, descendible and alienable.
FEE TAIL: abolished and turns into a fee simple absolute.
LIFE ESTATE: Req’ts: life tenant limited by doctrine of waste (see
below). Future interest: reversion in grantor or remainder in 3d
party. If life estate in 2 persons, contingent remainder in fee
simple upon death of first.
Defeasible Fees:
FEE SIMPLE DETERMINABLE: Req’ts: Clear conditional
language, violation of which leads to automatic forfeiture.
Characteristics: Divisible, descendible, alienable – but always
subject to durational condition. Future Interest: possibility of
reverter.
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT: Req’ts:
clear language that grantor has a right to re-enter. Char:
Divisible, descendible, alienable, subject to condition. If
violated, interest may terminate at grantor’s option. Future
Interest: right of entry.
FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION: Char:
Divisible, descendible, alienable subject to condition. Future
interest: Shifting executory interest to 3rd party; springing
executory interest to grantor.
FUTURE INTERESTS
TO GRANTOR: Possibility of reverter. Right of Entry.
Reversion. Springing Executory Interest.
TO 3RD PARTY:
Shifting Executory Interest: follows defeasible fee of some sort.
Contingent Remainder: unascertained person OR subject to
condition precedent, or both. If condition precedent, conditional
language appears before language creating remainder. If
satisfied, becomes an indefeasibly vested remainder.
Vested Remainder: ascertainable person and not subject to
condition precedent.
Indefeasibly Vested Remainder: 3rd person certain to acquire
future interest w/o condition.
Vested Remainder Subject to Complete Defeasance/Total
Divestment: 3rd party’s future interest could get cut short by
satisfaction of a condition subsequent.
PERMISSIVE WASTE: life T must pay all ordinary taxes and
mortgage payments and protect land from disrepair by
conducting reasonable maintenance.
AMELIORATIVE WASTE: acts that may enhance prop’s value not
allowed unless future interest holders know + give consent.
RULE AGAINST PERPETUITIES: voids future interest if there is
any possibility that the given interest may vest >21 yrs after
death of measuring life.
Analysis: (1) Last person mentioned by proper name; (2) next
subsequent party not mentioned by proper name takes. (3) the
rest is struck.
Reform: Wait and See/Second Look: Majority jxs determine
RAP at the end of the measuring life. Uniform Statutory Rap:
provides for 90 year vesting period instead of life + 21 yrs.
CONCURRENT ESTATES/CO-OWNERSHIP
JOINT TENANCY: Creation: TTIP – time; title; interest (equal);
and possession of the whole. Grantor must clearly express
survivorship rts. Char: not devisable or descendable; alienable
but destroys JT. Severance: SPAM – Sale, Partition (voluntary
agmt; partition in kind; forced sale), Mortgage (if title theory).
TENANCY BY THE ENTIRETY: marital interest btwn H & W w/ rt
of survivorship. Creation: only H&W who take as one.
Presumption when couple takes. Char: creditors can’t touch and
no unilateral conveyance to 3rd party.
TENANCY IN COMMON: Char: each co-T owns individual pt
with rt to possess the whole. Descendible, divisible &
alienable. No survivorship rts.
RTS OF CO-T: Possession: each has rt to possess whole; no
ouster. Rent from Co-T: none, absent ouster. Rent from 3rd
Parties: lease of premises must acct to co-T for fair share of
income. Adverse Possession: co-T can’t adversely possess.
Carrying Costs: ea co-T must pay for portion of taxes &
mortgage. Repairs: contribution from other co-T if co-Ts
advised of reasonable & necessary repairs. Improvements: no
contribution from co-Ts. But at partition, improver responsible
for increase or decrease in value. Waste: no waste and liability if
commits. Partition: any co-T can seek it.
LANDLORD/TENANT
TENANCY FOR YEARS/TERM OF YEARS/ESTATE FOR YEARS:
Lease of fixed, determined period. Termination: no notice req’d.
Req’ts: >1yr must be in writing (SoF).
Vested Remainder Subject to Open: remainder vested in group
with at least one qualified to take, but possible to add more class PERIODIC TENANCY: Successive or continuous intervals.
members.
Termination: notice req’d; must be at least equal to length of
period
with end at natural lease period.
DOCTRINE OF WASTE
Express or Implied: implied if: no duration specified but
payment req’d at spec intervals; oral agmt of terms of years
VOLUNTARY or AFFIRMATIVE WASTE: overt conduct causing a
with payment at spec intervals; or if L elects to holdover T who
decrease in value or consump/exploit of natural resource, except
wrongfully stays.
PURGE – Prior Use (if exploitation previously occurred, but
TENANCY AT WILL: no fixed period of duration. Termination: at
limited to open mines doctrine); Reasonable repairs; Grant; or
any time.
Exploitation (land only suitable for this purpose).
(Very Athletic Purple Aliens)
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REAL PROPERTY
TENANCY AT SUFFERANCE: T wrongfully holds over expiration
of lease.
TENANT DUTIES
DUTY TO 3RD PARTIES: keep premises in good repair; liability
for injuries sustained by invitees, even if L promised to repair.
DUTY TO REPAIR: maintain premises and make ordinary repairs.
No waste. Fixtures: Fixtures pass with ownership of land
unless: private agmt OR T can remove w/o causing substantial
harm to premises. Loss: CL – T liable for any loss, incl force of
nature. Modern: if loss w/o fault of T, T may terminate lease.
DUTY TO PAY RENT: CL: duty indy of L’s obligations. Mod:
duty dependent on L’s covenants under lease. Breach when T
on prop: Commercial Ts may be held for new yr-to-yr lease if
orig was >1 yr. Residential Ts held to new month-to-month
lease, regardless of orig term. Rent = new rent if L advised T
before term of old lease OR old rent if L advised T after term.
Breach when T out of possession: SIR – Surrender (L treats as
ending of leasehold, but if >1yr left, writing may be req’d);
Ignore (hold T responsible for rent unpaid); Re-Let (hold T
liable for deficiency but L must diligently try to re-let).
LANDLORD DUTIES
DUTY TO DELIVER POSSESSION: Maj: put T in phys possession;
if former T on premises, L is liable for damages. Min: put T in
legal possession; if former T on premises, that is T’s issue.
IMPLIED COVENANT OF QUIET ENJOYMENT: Breached by
Total/Partial Actual or Constructive Evic. Total Eviction: L
exlcudes T from entire premises; or actual or continual refusal
to repair material damages that prevent habitability (terminates
T's oblig to pay rent); Partial Eviction: 3rd party retakes and
physically excludes T from portion of leased premises (rent
proportionately reduced).
time would be invalid and the subletter/assignee could be
ejected.
ASSIGNMENTS: transfer in entirety. L and T2 are in privity of
estate but not privity of K. L and T1 are not in privity of estate
but in privity of K. T2 is primarily responsible and T1 is
secondarily responsible. Sublease: only portion of interest
transferred. L and T2 are not in privity of estate or K. T1 and
T2 are responsible to each other.
SERVITUDES
EASEMENTS: non-possessory prop interest.
Terms: Affirmative: rt to do something on servient land.
Negative: req’s holder to compel servient owner to refrain.
Limited to LASSS: Light, Air, Support, Stream, Scenic view.
Appurtenant: physical use/enjoyment of property. Passes auto
w/ dominant tenement and with servient tenement unless BFP
w/o notice. In gross: only personal or commercial advantage.
Non-transferrable unless for commercial purpose.
Creation: PING – Prescription (COAH – see below);
Implication (if division, implied from existing use if apparent
and reasonably necessary to dominant land’s use/enjoyment);
Necessity (if division creates land lock); Grant (>1yr must be in
writing).
Termination: END CRAMP – Estoppel (servient landowner
materially changes position in reasonable reliance that easement
won’t be enforced); Necessity; Destruction of servient land;
Condemnation of servient land by eminent domain; Release (in
writing); Abandonment (phys action by holder expressing intent
never to use again); Merger (if separated again later, doesn't
automatically revive); Prescription (servient owner interferes)
LICENSE: privilege to enter land for specific purpose. Informal
and freely revocable, unless estoppel – licensee invested
substantial $/labor in reasonable reliance on continuation.
CONSTRUCTIVE EVICTION: SING – Substantial Interference
(chronic problem fundamentally incompatible w/ quiet
PROFIT: permission to enter land to take soil. Same rules as
enjoyment); Notice (T notifies L, who fails to respond); Get out easements.
(T must vacate w/in reasonable time.
COVENANT ($ DAMAGES): contractual promise to do or not do
OTHER TS: L not responsible for actions of other Ts, except
something on land. Burden runs: WITHVN – Writing (by orig
cannot permit nuisances and must control/police common areas. parties); Intent (by orig parties to run); Touch/Concern
(provides some value to benefited party); Horizontal and
TORT: CLAPS – Common Areas (must maintain); Latent
Vertical Privity (H: succession of estate btwn original parties,
Defect (warn of those he should be aware of); Assumption of
e.g. grantor/ee; L/T; debtor/creditor. V: non-hostile nexus);
Repairs (if you say you’ll fix, fix w/ reasonable care); Public
Notice (Actual, Record, or Inquiry). Benefit runs: WITV –
Use Rule (defects if leasing public space); Short term lease of
Writing; Intent; Touch/Concern; Vertical Privity.
furnished apt (liable for any defects causing harm).
IMPLIED WARRANTY OF HABITABILITY (RESID. ONLY): Req’t: fit EQUITABLE SERVITUDE (INJUNCTION TO ENFORCE BURDEN):
for basic human habitation as determined by housing code or
indy judicial conclusion. Breach: M+3Rs – Move out (and
terminate); Repair & deduct; Reduce rent (or withhold until ct
determines fair mkt value – but put $ in escrow); Remain and
sue (pay rent and get damages).
Creation: WITNES – Writing; Intent; Touch/Concern; Notice;
Eq Serv.
TENANT POWER: T only has ability to assign or sublease the
interest (time) he has. If extended, then sublease for that extra
ADVERSE POSSESSION: Possession for stat period of time can
ripen into title if it's COAH – Continuous; Open/Notorious;
Actual; Hostile. Posessor's state of mind irrelevant. No adverse
Implied Equitable Servitude: Maj rule. Req’ts: General Scheme
by subdivider when sale began and Notice. Defenses: changed
condition is so pervasive it affects entire area.
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REAL PROPERTY
possession if owner disabled at inception. Tacking ok if privity
btwn adverse possessors.
LAND CONVEYANCES
LAND CONTRACT
SoF req’s writing unless (2 of 3): possession; payment; subst
improvemts. If K > actual size – spec perf w/ pro rata reduction
in price. Risk of Loss: B owns land when K is signed so buyer
bears risk. Implied Promises: marketable title at closing free
from adv possession, encumbrances, zoning viols. No false stmt
of material fact, incl failure to disclose latent, material defects.
No implied promise of fitness or habitability unless new home
builder (promise of workmanlike construction). Untimely
Performance: time not of the essence unless stated in K. Perf
rendered within reasonable time after closing date is ok.
DEED
Replaces K as controlling doc. Req’s: LEAD – Lawfully
Executed And Delivered. Lawful ex: writing, signed by grantor
(“G”), comports w/ stat req’ts (no consideration req’d and
description only requires “good lead”). Delivery: G must have
present intent to be immediately bound. Recipient’s express
rejection defeats delivery.
TYPES OF DEED:
Quitclaim: no covenants; gives what G has.
General Warranty Deed: Sad, Crying Elvis Wants Queen
Anne – Seisin – G owns estate he’s conveying; Rt. to Convey
– has power to convey w/o temp restraints; Against
Encumbrances – no servitudes or mortgages; Warranty –
promise to defend against lawful claims by others; Quiet
Enjoyment – no disturbance by 3rd party’s lawful claim of title;
Further Assurances – do whatever necessary to perfect title.
Statutory Special Warranty Deed: promises G makes on behalf
of himself that he won’t convey to anyone else and property is
free from encumbrances made by G.
TRANSFER: Note must be negotiable and made payable to
named mortgagee; original note must be endorsed and signed by
mortgagee; original must be delivered; transferee must take note
in good faith w/o notice of illegality; transferee must pay value
for note. Transferee is holder in due course. T takes free of
personal defenses but subject to real defenses (MAD FIFI4 –
material alteration, duress, fraud in factum, incapacity,
illegaility, infancy, insolveny)
SELLING WITH MORTGAGE: Assumption of mort: debtor is
primarily and buyer is personally liable. Subject to mort: buyer
has no personal liability; only owner is personally liable but
home can still be foreclosed.
FORECLOSURE (Judicial Action)
JOINDER: all jr lien holders must be joined or mortgage will
remain on land. D must be joined if seeking deficiency judg.
AMT: If sale < debt, mortgagee brings deficiency action. If sale
> debt, jr liens paid in full by order of priority, surplus to debtor.
SR. INTEREST: not affected by foreclosure. B at sale takes
subject to sr. interest, which can still foreclose on if not paid.
PRIORITY: First to record, first in right. BUT, purchase money
mortgagee has “super-priority.”
REDEMPTION: in equity: up to date of sale, debtor may pay
missed payments + interest + cost. Statutory redem: ½ states
allow redem w/in fixed period, e.g. 6mths. Mortgagor has rt to
possess during that time.
MISCELLANEOUS
LATERAL SUPPORT: Strict liability if excavation causes adj land
in natural state to cave or if land w/ bldg can show that land
would have collapsed in natural state. Otherwise, negligence.
WATER RIGHTS
MORTGAGES
(INCREASINGLY TESTED ON MBE)
TYPES
LEGAL MORTGAGE: encumbrance in writing.
EQUITABLE MORTGAGE: deed absolute on face given as
collateral.
RIPARIAN DOCTRINE: H2O belongs to landowners (riparians)
bordering water course. Liable only for unreasonable
interference w/ other’s use.
PRIOR APPROPRIATION DOCTRINE: H2O initially belongs to
the state. Rt to divert and make beneficial use can be acquired
by indiv. Rts determined by priority of beneficial use (e.g.
agriculture) first in time, first in rt.generally.
GROUNDWATER: Surface owner has rt to make reasonable use
of H2O beneath surface, but can’t be wasteful.
SURFACE H2O: common enemy rule: landowner can change
drainage, but can’t unnecessarily harm land of another.
ZONING
VARIANCE: creates flexibility. Reqt’s: 1) undue hardship; 2)
variance won’t decrease neighboring prop value. Determined
by admin action before zoning board.
NON-CONFORMING USE: once lawful but no longer b/c of new
zoning ordinance. Can’t be eliminated all at once unless just
comp paid.
UNQ EXACTIONS: amenities gov’t seeks in exchange for
granting permission to build. Inherently suspect – must be
reasonably related in nature and scope to impact of proposed
development.
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RECORDING SYSTEM
WHO IS PROTECTED? BFP = purchaser for value and without
notice of someone else buying first (actual, inquiry or record
notice). Doomed Donee: no protection for heir, devisee, or
donee except shelter rule. Shelter Rule: one who takes from
BFP is protected just like BFP. Wild Deed: out of order deed
doesn’t give record notice. Estoppel: person conveying land
w/o any interest in it is estopped from denying validity of
conveyance if he later acquires.
NOTICE STATUTE: 2nd buyer wins if BFP and A not record.
RACE NOTICE: 1st buyer wins if records before 2nd buyer.
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Present Interest
ESTATES DIAGRAM
Life Estate
Fee Simple Absolute
“To A for life”
Must be measured in explicit
life years
Life tenant’s entitlement
rooted in WASTE
“To A” or “To A and his heirs.”
Devisable
Descendible
Alienable
No future interest
FS Determinable
To A for so long
as/during/until
Requires durational
language
Divisible
Descendible
Alienable (subject to
duration)
Reversion
Future Interest
“To A for
life”
Executory
Interest
Remainder
To A for life, but
if X, then to B.
Shifting or
Springing
Contingent
Remainder
Condition
precedent; or
Unascertainable
taker
CL: destroyed if
not vested before
life estate ended
or destroyed by
merger
Mod indestructable
To A for life, then to B
Capable of becoming
possessor upon
expiration
Indefeasibly
Vested Remainder
To A for life,
remainder to B
No condition
precedent; and
Ascertainable
taker
No attached
conditions
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Possibility of
Reverter
Grantor
Vested Remainder Subject to
Open
To A for life, then to B’s
children
No condition precedent;
and
Ascertainable taker subject
to open class
May be divided among ppl
born in future
Rule of convenience – class
closes at death of present
estate holder
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Defeasable Fee Simple
Fee Tail
Requires more than words of
mere desire, hope or intention
Absolute restraints on
alienation are void
FS Subject to Condition
Subsequent
To A, but if X grantor
reserves right to re-enter
and re-take.
Divisible
Descendible
Alienable (subj to
condition. Forfeiture not
automatic, but subject to
grantor’s prerogative)
Right of
Entry
Grantor
To A and the heirs of his body
Abolished and forms FSA
Historically, future interest in
grantor (reversion) or 3rd party
(remainder)
FS Subject to Executory
Interest
To A, but if X event
occurs, then to B OR To
A, if X.
Divisible
Descendible
Alienable – forefeiture is
automatic
Springing
Executory
Interest
To A, if X.
Cuts short interest
of grantor
Shifting
Executory
Interest
To A, but if X, to B.
Cuts short interest
of someone other
than grantor
Vested Remainder Subject to
Complete Defeasance/
Divestment
“To A for life, remainder to
B, provided, however, that
if X, to C.”
No condition precedent,
subject to a condition
subsequent; and
Ascertainable taker
Can be destroyed by the
occurrence of an event
MBE and MEE Lean Sheets - Page 36 of 45
SECURED TRANSACTIONS – UCC Article 9
SCOPE and DEFINITIONS
UCC ARTICLE 9: applies to (1) consensual security interests in (i)
personalty & (ii) fixtures; (2) agricultural liens; (3) sale of
accounts, chattel paper, payment intangibles, or promissory
notes; (4) certain consignments; and (5) secured sales disguised
as a lease. Only applies to voluntary collateralizations – not
statutory or mechanics liens.
DEFINITIONS
DEBTOR (“D”): entity that owes payment or performance.
SECURED PARTY/SECURED CREDITOR: entity that has security
interest. Security agreement – contract/agreement between D
and secured party that creates security interest.
SECURITY INTEREST: interest in personal property or fixtures
which secures payment or performance of obligation.
(2) Control: when collateral is investment property and
electronic chattel paper;
(3) Notation of lien on certificate of title: where collateral is
automobile;
(4) Secured party files notice in public records: (MOST
COMMON) Must only provide enough info to enable others to
make inquiries. Must only be “simple and sparse”, but must
include D's and creditor's name and address, plus description of
collateral. Notice filed with secretary of state where D located
(Individual → state of principal residence; Registered org →
state under whose laws organized. EXCEPT if collateral relates
to land → county where land located.);
(5) Purchase money security interests (“PMSI”) in consumer
goods: = AUTOMATIC perfection.
PERFECTION AS TO PROCEEDS: If secured party has perfected
COLLATERAL: fixtures or personality subject to security interest. security interest in collateral, they automatically have perfected
Creditor can look to for satisfaction. Purchase money sec interest security interest for 20 day in proceeds D receives in exchange
for collateral. After 20 days, must take steps to perfect new
(2 kinds):
interest, UNLESS:
1) Seller financed PMSI - secured party sells D collateral
(a) identifiable cash proceeds; or
on credit and retains security interest in item sold;
2) Enabling loan – loan to D enabling D to buy specific
collateral, and creditor takes sec interest in specific
collateral.
AFTER-ACQUIRED PROPERTY CLAUSE: permissible, and allows
secured party to obtain sec interest in D's future prop.
FUTURE ADVANCE CLAUSE: permissible, and allows secured
party to contract to make future advances secured by present
security agreement.
ATTACHMENT: steps legally required to give secure party a
security interest in collateral that is effective against debtor.
Creditor not secured creditor until attachment.
(b) security interest in orig collateral perfected by filing
financing statement, security interest for new collateral/proceeds
would be filed in same place as financing statement for orig
collateral, and proceeds not purchased with cash proceeds of
collateral.
CHANGE IN USE OF COLLATERAL: does not change effectiveness
of filed financing statement to perfect security interest.
PRIORITY
GENERALLY: If multiple secured parties claim same collateral,
the first to file OR perfect has priority. Each claimant entitled to
payment in full before a subordinated claimant entitled to take.
PERFECTION: steps legally required to give secured party interest HIERARCHY OF PRIORITIES:
in collateral effective against the world. Generally, perfection = (1) Buyer in Ordinary Course (“BIOC”) – buyer who purchases
providing public notice of security interest.
goods from merchant in good faith, w/o knowledge that sale
violates rights of another party in the goods, and in ordinary
FINANCING STATEMENT: doc used to provide public notice of
course from person in the business of selling such goods.
security interest.
CREATING ENFORCEABLE SECURITY INTEREST
(ATTACHMENT)
ATTACHMENT: makes security interest enforceable. Three Req'ts
(VCR): (1) Value – must be given by creditor. Any consideration
to support a simple K is enough; (2) Contract – K must evidence
secured transaction, unless secured party has taken possession of
the collateral (security agmt). K must (i) be authenticated, and
(ii) reasonably identify collateral; (3) Rights – D must have right
to encumber collateral.
PERFECTION OF SECURITY INTEREST
(2) Perfected Attached Creditor (“PAC”) – Article 9 creditor who
attains perfection.
(3) Lien Creditor (“LC”) – general creditor who gets judicial lien
on the collateral.
(4) Non-Ordinary Course Buyer (“NOCB”) – purchases
collateral outside ordinary stream of commerce (e.g., buying
stereo from florist) – takes collateral subject to perfected
security interests. But, takes free from un-perfected security
interests if no knowledge.
(5) Attached Unperfected Creditor (“AUPC”) – Article 9 creditor
who attaches security interest, but AUPC either: (i) never
perfects, or (ii) tries to perfect, but fails.
METHODS OF PERFECTION: Puts world on record or
constructive notice of secured party's existence. Several ways to (6) General Unsecured Creditor (“GUC”) – lender that fails to
perfect security interest:
take collateral.
(1) Possession; security interest perfected as soon as Secured
party takes possession of physical collateral;
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SECURED TRANSACTIONS – UCC Article 9
SPECIFIC CONTESTS:
3) Content of notice must include:
For Non-Consumer Goods – (a) description of D & secured
party, (b) description of collateral, (c) method of sale (public or
private), (d) statement that debtor is entitled to accounting for
unpaid debt, and (e) time and place of public sale or when
PAC v. the world: PAC defeats all. EXCEPT - (i) another PAC
private sale will take place.
who filed first; (ii) Certain PMSI-holders (After-acquired
collateral financier: secured creditor who takes as collateral “all For Consumer Goods – same as above + how D can calculate
of D’s X.”; and Holder of a PMSI: security interest enabling D D's deficiency and redeem collateral.
to purchase goods); and (iii) BIOC.
ACTION FOR DEFICIENCY JUDGMENT
AUPC v. the world: Enforceable against D, and defeats
subsequent AUPC and any GUC. AUPC loses to PAC, to LC,
and any buyer without knowledge of security interest
DEFAULT
When D breaches security agmt, secured party has right to
proceed against D.
SELF-HELP REPOSSESSION
Allowed to repossess collateral w/o judicial process so long as
creditor doesn’t “breach the peace” (conduct likely to cause
violence). Physical presence of D + verbal objection gen enough
to cause breach of peace. If collateral in D's home, creditor may
not enter w/o vol and contemporaneous consent. If collateral
outside home, creditor may take if no objection by D.
REPOSSESSION BY JUDICIAL ACTION
Secured party can go to court to get a judicial writ, ordering
sheriff to obtain possession and deliver it to the secured party
STRICT FORECLOSURE
Upon default or repossession, secured party retains collateral in
full satisfaction of debt. Secured party must send written
proposal to retain collateral:
If proceeds from collateral less than amt owed, secured party can
proceed against D for deficiency judgment. But, if collateral
sold cheap to inside buyer, deficiency calculated using price an
independent 3rd party would have paid.
DEBTOR'S RIGHT TO REDEEM
Right to redeem before collateral resold or strict foreclosure. D
must tender amt owed + reasonable expenses. Acceleration
clause may require D to tender entire balance to redeem.
FIXTURES
DEFINITION: Goods that have become so attached to real
property that an interest in them arises under real property law.
(e.g. built in appliances, central air, elevators, etc.) Ordinary
building materials not considered fixtures. Interests in fixtures
may arise under UCC and real estate law.
PERFECTION: Must make “fixture filing” in office where
mortgage on real estate would be filed. Same req'ts as financing
statement + reasonable ID of real estate, and name of owner.
PRIORITY:
IF COLLATERAL IS CONSUMER GOODS: give notice to (1) debtor; Secured party v. subsequent real estate interest – security interest
(2) any secondary obligors (i.e. co-signers)
in fixtures > real estate interest arising after perfection of
security interest by fixture filing.
IF NOT CONSUMER GOODS: give notice to (1) debtor; (2) any
Secured party v. prior real estate interest – prior real estate
other secured party from whom foreclosing party has received
interest properly recorded > later security interest. EXCEPT:
notice of a claim to the collateral; and (3) any other perfected
third party that filed financing statement or made notation on a PMSI takes priority if perfected by fixture filing before goods
become fixtures or within 20 days thereafter.
certificate of title.
If any party objects within 20 days after notice sent → NO strict WHEN FILING NOT REQUIRED: No fixture filing necessary if
foreclosure – collateral must be disposed of by sale (may object fixtures are readily removable (1) factory or office equipment;
(2) equip not primarily used in operation of the real estate; or (3)
for any or no reason)
replacements of domestic consumer appliances.
CONSUMER GOODS 60 % RULE: No strict foreclosure IF D paid
ACCESSIONS
at least 60 % of cash price in the case of a PMSI; or 60 % of
loan in other cases. Secured party must sell collateral within 90 DEFINITION: Goods physically united with other goods in
days after repossession.
manner that the identity of original goods is not lost. (e.g. tires
on car)
SALE OF COLLATERAL
Upon default, secured party may sell, lease or license collateral, PERFECTION: If security interest perfected when collateral
becomes accession, it remains perfected in the collateral.
and apply profit to debt.
PRIORITY: Same priority rules as fixtures. Special rule – security
REQ'TS:
interest in accession is subordinate to security interest in the
(1) Sale must be commercially reasonable as to method,
whole which is perfected by compliance with requirements of a
manner, time, place and terms;
certificate of title.
2) Reasonable authenticated notice must be sent (w/n
REMOVAL: Secured party may remove accession if security
reasonable period of time before sale (e.g. 10 days): Consumer interest has priority over claims of every person with interest in
Goods – notice to D and secondary obligors. Non-Consumer
the whole. Secured party responsible for injury to whole or
Goods – notice to D, other secured parties, perfected creditors
other goods resulting from removal.
and secondary obligors;
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TORTS
INTENTIONAL TORTS
BATTERY: P must show 1) a harmful or offensive contact, 2) to
P’s person, 3) D’s intent and 4) causation.
ASSAULT: P must show 1) an act by the D which causes
reasonable apprehension in P; 2) of immediate harmful or
offensive contact to P’s person; 3) D’s intent; and 4) causation.
Re-entry on land: wrongdoer → reasonable time and manner;
innocent party → reasonable time and peaceful manner with
notice; on land through owner’s fault → no privilege.
Re-capture of chattel: force only if in hot pursuit. May only
recapture from tortfeasor or third party with knowledge of
wrongful taking.
Shopkeepers privilege: shopkeeper may detain for reasonable
FALSE IMPRISONMENT: P must show 1) an act or omission by time and manner if reasonably believes person committed theft
D that confines or restrains P; 2) to a bounded area; 3) D’s
in order to conduct an investigation.
intent; and 4) causation. NOTE: P must be aware or harmed by
Public necessity: protect community as a whole, absolute
confinement.
defense for trespass and damages;
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: P must
Private Necessity: protect own interest only if emergency is not
show 1) extreme and outrageous conduct by D; 2) intent or
of his own making, only defense for trespass, e.g. D still liable
recklessness; 3) causation; and 4) damages in the forum of
for actual harm.
severe emotional distress.
DEFAMATION
BYSTANDER IIED: P must show 1) P present when injury
occurred; 2) P is a close relative to V; and 3) D knew P was
present and a close relative.
DEFAMATION: To prove a prima facie case for common law
defamation, the P must show:
TRESPASS TO LAND: P must show 1) a physical invasion of P’s
real property; 2) intent; and 3) causation. NOTE: Negligent or
reckless entries are only subject to liability if D causes harm to
land.
1) defamatory language,
TRESPASS TO CHATTEL: P must show 1) an act by D that
interferes with P’s right of possession in chattel; 2) intent; 3)
causation; and 4) damages.
4) damages, possibly. If libel or slander per se, then damages
are presumed. If any other slander, damages must be proven
with some showing of economic harm.
CONVERSION: P must show 1) an act by D that interferes with
P’s right of possession of chattel, 2) which is so serious that D
must pay for chattel’s full value; 3) intent; and 4) causation.
NOTE: even a BFP of chattel may be guilty when chattel has
been stolen from its true owner.
In addition, if this is a matter of public concern (constitutional
defamation), P must also prove 1) falsity of the statement; and 2)
fault on D’s part.
DEFENSES TO INTENTIONAL TORTS
2) of or concerning P;
3) publication by D to a third person; and
If the P is a public figure, she must prove malice (e.g. D
knowing of the falsity or acting in reckless disregard), in which
case damages are presumed.
If P is a private figure, she must only prove negligence, in
CONSENT: Req’s legal capacity. Express or implied (Apparent which case she must prove damages, or demonstrate malice, in
common understanding, custom and usage or D’s reasonable
which case damages are presumed.
interpretation of P’s objective conduct; Implied by law where
DEFENSES TO DEFAMATION
necessary to save life).
SELF DEFENSE AND DEFENSE OF OTHERS: invasion is imminent CONSENT (supra). TRUTH. PRIVILEGE: Absolute – spouses (no
or in progress; reasonable mistake does not negate; may use only publication); officer of gov’t in course of official duties.
proportionate force.
Qualified privilege – public interest in promoting candor.
Speaker must have a reasonable belief that info is true and
FALSE ARRESTS:
speech confined to matter at hand.
Felony Arrest w/o Warrant – Police → reasonable grounds to
INVASION OF RIGHT TO PRIVACY
believe felony was committed and arrested person committed it;
Private → felony was actually committed and private person had APPROPRIATION OF P’S PICTURE OR NAME: P must establish an
reasonable grounds to believe person committed it.
unauthorized use of P’s picture or name for D’s commercial
Misdemeanors Arrest w/o Warrant – Police and Private →
breach of the peace and committed in presence of arrester;
advantage, unless news worthy publication. Remedies →
injunction; damages.
Crime Prevention w/o Warrant – Police and Private → if felony
or breach of the peace is in progress, or reasonably appears to
be. Deadly force only allowable if felony and suspect poses
serious harm
INTRUSION: P must show that D’s act of prying or intruding into
a private affair, in which P has a reasonable expectation of
privacy, would be objectionable to a reasonable person.
DEFENSE OF PROPERTY: Must ask to desist; no deadly force
allowed.
FALSE LIGHT: P must show that D attributed to P certain views
that he does not hold or actions that he did not take which would
be objectionable to a reasonable person under the circumstances.
In addition, there must be publication (must be widespread
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TORTS
POSSESSORS OF LAND
dissemination of major/material falsehood). If public concern,
must prove malice.
If activity, then RPP under similar circumstances.
DISCLOSURE: P must show a public disclosure of private info
UNDISCOVERED TRESPASSERS: zero duty of care.
about P that would be objectionable to a reasonable person (must
be widespread dissemination of confidential info), unless news DISCOVERED TRESPASSERS (including anticipated trespassers):
If dangerous cond → duty to warn of concealed unsafe cond that
worthy publication.
may cause death or serious bodily harm. P must show 1)
DEFENSES TO PRIVACY TORTS
artificial cond; 2) highly dangerous; 3) concealed; and 4) prior
Consent; Absolute and Qualified privileges (for disclosure and knowledge. No duty to inspect or repair.
false light). Note: Truth is not a defense
ATTRACTIVE NUISANCE DOCTRINE: Child trespassers injured
MISCELLANEOUS TORTS
by artificial cond are entitled to the care of a RPP under the
circumstances, if P shows 1) dangerous cond present on land that
INTENTIONAL MISREPRESENTATION (Fraud, Deceit): P must
owner is or should be aware; 2) owner knows of or should know
prove an 1) affirmative misrepresentation of a material fact; 2)
that kids frequent vicinity of cond; 3) cond is likely to cause
that D made knowing or believing it was false; 3) which induced
injury; 4) expense of remedy is slight versus risk.
P to act in reliance upon the misrepresentation; 4) justifiable
LICENSEES: entrants w/ own purpose but with permission, e.g.
reliance; 5) causation; and 6) damages.
social guest. If dangerous condition, possessor has duty to warn
NEGLIGENT MISREPRESENTATION: P must prove 1) misrep by
licensee of all known dangerous conditions. P must show 1)
D in a business or professional capacity; 2) breach of duty
concealed condition; and 2) possessor had prior knowledge. No
toward the P; 3) causation; 4) justifiable reliance; 5) damages.
duty to inspect or repair.
INDUCEMENT OF A BREACH OF CONTRACT: P must prove 1)
INVITEE: possessor holds open land for commercial benefit or to
existence of a valid contractual relationship btwn P and a third
public if land is generally open. If dangerous condition,
party or valid business expectancy of P; 2) D’s knowledge of
possessor has duty to protect invitees from all reasonably
relationship or expectancy; 3) an intentional interference by D
knowable dangerous conditions. P must show 1) concealed
inducing breach or termination; 4) damages. Defense: D’s own
condition; and 2) possessor had prior knowledge or would have
business interest or protection of interest.
discovered by reasonable inspection. EXCEPTION: if owner of
MALICIOUS PROSECUTION: Must be 1) institution of criminal recreational land w/o fee, no liability for injuries unless
proceedings against P; 2) termination in P’s favor; 3) absence of possessor willfully and maliciously failed to guard against or
probable cause for the prior proceedings; 4) improper purpose; warn.
and 5) damages
LESSOR: general duty to warn of existing defects if aware that
ABUSE OF PROCESS: Must be 1) wrongful use of the legal
lessee will not discover upon reasonable inspection. LESSEE gen
process for an ulterior purpose and 2) a definite act or threat
duty to maintain.
against P in order to accomplish the ulterior purpose.
VENDOR OF REALTY: disclose concealed, unreasonably
NEGLIGENCE
dangerous conditions not discoverable by reasonable inspection.
DUTY: Duty of care owed to foreseeable plaintiffs in the zone of
STATUTORY STANDARDS OF CARE
danger is the amount of care a reasonably prudent person (RPP)
Statutory duty may replace common law duty of care, thus
would exercise acting under similar circumstances, taking into
creating negligence per se, if: i) the statute provides for a
account the person’s superior skill, knowledge, and physical
criminal penalty; ii) statute clearly defines the standard of
characteristics.
conduct; iii) plaintiff is within the protected class; and iv) statute
SPECIALIZED DUTY RULES
was designed to prevent the type of harm suffered by plaintiff.
CHILDREN: under 4 → no liability; 4-18 → care of a child of
similar age, intelligence and experience under similar
circumstances, unless child is engaged in adult activity.
PROFESSIONALS: owe the care of an avg member of that prof
participating in a similar community. Specialists compared w/
other spec nationwide.
DUTY TO RESCUE
Generally none, unless family member, common carrier and
innkeepers to customers, and land possessors to invitee.
BREACH
CUSTOM OR USAGE; VIOLATION OF STATUTE; RES IPSA
LOQUITOR: P lacks info of what D did wrong, but as a matter of
COMMON CARRIERS AND INNKEEPERS: held to high degree of
logic the accident that occurred is normally, typically or
care and liable for even slight negligence if P is a passenger or
routinely associated with negligence.
guest.
CAUSATION
AUTO DRIVER TO GUEST: owed duty of ordinary care, although
ACTUAL CAUSATION: Single D: “But for” test. Multiple D:
nonpaying passengers may only be liable for reckless tortuous
merged or mingled causes → substantial factor; unascertainable
conduct.
cause → shift burden of proof to D
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TORTS
PROXIMATE CAUSE: (aka fairness). Key is Foreseeability. If D
is direct cause, result is foreseeable unless freakish and bazaar.
If indirect cause: D always liable for intervening medical
negligence; negligence rescue; protection or reaction forces; and
subsequent disease or accident. No liability if intervening force
is crime or intentional tort.
DAMAGES
Eggshell plaintiff rule – you take P as you found P
DEFENSES TO NEGLIGENCE
CONTRIBUTORY NEGLIGENCE: minority → contributory
negligent P is barred from recovery. Last clear chance applies.
ASSUMPTION OF THE RISK: min. P knew of risk and
voluntarily proceeded.
IMPLIED WARRANTY OF MERCHANTABILITY: goods are of
average acceptable quality and generally fit for the ordinary
purpose for which the goods are used. SL if breached. Defense
→ assumption of risk; contributory neg.
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE:
seller knows or has reason to know the particular purpose for
which goods are to be used and buyer relies on seller to select
goods. SL if breached. Defense → assumption of risk;
contributory neg.
EXPRESS WARRANTY: affirmation of fact or promise that
becomes basis of the bargain. Breach if bargain isn’t lived up to.
MISREPRESENTATION OF FACT: SL if stmt was of material fact
concerning quality or use of goods. Seller intended to induce
reliability with stmt.
COMPARATIVE NEGLIGENCE: P failed to take proper degree of
care for their own safety. Jury assigns % of fault.
MISCELLANEOUS TORTS
NUISANCE: Public nuisance is established if the community’s
right to health, safety, or property have been interfered with to
Partial/Modified comparative fault → P recovers % only if fault an unreasonable degree, requiring a balance of interests. Private
nuisance is established if P’s ability to use or enjoy his property
is <50%. Last clear chance does not apply
has
been interfered with to a substantial and unreasonable
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: P must show
degree, requiring a balance of interests.
1) D was negligent; 2) P was within zone of physical danger as a
LOSS OF CONSORTIUM: If V is married, uninjured spouse may
result of D’s negligence; and 3) physical manifestation of that
claim damages for loss of: 1) domestic services; 2)
stress (exception: physical manifestation assumed if
companionship; 3) sexual intimacy.
mishandling of corpse)
Pure comparative fault → strictly by the numbers.
STRICT LIABILITY TORTS
VICARIOUS LIABILITY: Arises out of specific relationships.
Employer/Employee – respondeat superior when employee
commits tort while w/in scope of employment; no VL for
intentional torts outside scope of liability unless i) job entails use
of force; ii) employer authorizes; or iii) motivated by desire to
INJURIES CAUSED BY ANIMALS: Always SL if livestock or wild
benefit employer.
animals. No SL for domesticated animals, unless D knew of
Hiring party/ind contractor: no VL except land possessors are
vicious propensities.
liable for independent contractor injuries to invitees.
ULTRA-HAZARDOUS ACTIVITY: SL if P proves 1) activity cannot
be made safe given existing technology; 2) activity poses severe Car owner/Car Driver: generally no VL unless owner lends car
to driver for owner errand or owner provides express/implied
risk of harm; 3) activity is uncommon in the area where it’s
permission to immediate family member.
conducted.
Parent/Child: generally no VL, unless there is negligence or
PRODUCT LIABILITY
negligent entrustment.
STRICT TORT LIABILITY: P must show 1) that D was a merchant
CO-DEFENDANTS
routinely dealing in goods of this type; 2) defective product; 3)
existence of defect when product left D’s control; and 4) that P JOINT AND SEVERABLE LIABILITY: two or more negligent acts
was making foreseeable use of the product at the time of injury. are proximate causes to injury. If indivisible → each D is liable
for entire amount of damage. If divisible → each D is liable for
DEFECTIVE PRODUCT:
their identifiable portion. If Ds acting in concert → each D
Manufacturing defect: product differs from others off the
liable for entire amount of damage.
assembly line and failed to perform as safely as an ordinary
COMPARATIVE CONTRIBUTIONS:
consumer would expect.
Design defect: all products in the line are dangerous. D has duty Contribution: typically relative to proportion of fault; min –
to use alternative design if alternative is i) safer; ii) economical; apportionment in equal shares.
and iii) practical, e.g. doesn’t impair the products utility, make it Indemnity: shifts entire loss between or among tortfeasors if by
more difficult to use, or present alternative safety issues.
K, VL, strict products liability, or (in some jx) identifiable
difference in degree of fault.
Inadequate warnings: consumers must be warned of residual
risks, preferably at point of use, using more than words, e.g.
icons or pictures.
For SL, P must prove: i) existence of an absolute duty to make
safe; ii) breach of duty; iii) actual and proximate cause of the
P’s injury; and iv) damage to the P’s person or property.
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TRUSTS & ESTATES
EXECUTION OF WILLS
TYPES
WILLS
PHYSICAL ACT: burn, tear, cancel (cross out), destroy, obliterate
(erase). Act and intent must be simultaneous.
ATTESTED WILL: Requires (i) writing; (ii) signed by T; (iii) in
presence of two Ws; (iv) Ws sign will understanding that
instrument is T’s will.
HOLOGRAPHIC WILL: (i) Signed by T and (ii) material
provisions in T’s handwriting. Extrinsic evid ok to prove T’s
intent. Date not required, but may present inconsistency or
capacity issues.
Interlineations: must still satisfy req’ts of attested or
holographic will. No Dependent Relative Revocation (“DRR”)
if interlin is less than canceled provision; DRR ok if interlin is
more than canceled provision.
Cancellation: doesn’t increase gift but goes to residuary if no
beneficiary is specified.
BY OPERATION OF LAW: result of a pretermitted spouse or
child; or final dissolution of marriage.
Interested Ws: unless two disinterested Ws present, presumption
that interested W secured gift by wrongdoing. N/A if interested DEPENDENT RELATIVE REVOCATION: disregards revocation
(physical act or subsequent instrument) caused by mistake.
W is a fiduciary.
Req’ts: T revokes will in mistaken belief that a substantially
INTENT
identical will or codicil effectuates T’s intent. By operation of
CAPACITY: T must be > 18 years old; able to understand extent
law, revocation of the first is deemed conditional, dependent
of T’s property; know the natural objects of their bounty (e.g.
and relative to second will effectuating T's intent.
beneficiaries); and know the nature of his act. If no capacity →
NOTE: if second will is invalid b/c of fraud or execution, then
will is invalid.
revocation of first is invalid too, and will #1 was never revoked.
INSANE DELUSION: T had false belief that was a product of a
PREVENTION OF REVOCATION VIA K: Material provisions of K
sick mind; no evidence to support that belief; and delusion
in will; will expressly references K; clear and convincing evid
affected T’s will. Part affected by delusion is invalid and will
of agmt enforceable in equity; clear and convincing evid of
go to residuary or intestate.
agmt for the benefit of claimant that is enforceable in equity.
FRAUD: Representation of material fact known to be false by
COMPONENTS OF WILLS
wrongdoer for the purpose of inducing action or inaction and
does in fact induce desired action.
INTEGRATION: determines what makes up will. Look for
staples, numbered pgs, etc.
Fraud in Execution: T’s sig forged or T given doc that he
believes isn’t testamentary → entire will invalid.
INCORPORATION BY REFERENCE: (i) Doc or a writing; (ii) in
Fraud in Inducement: Wrongdoer’s representation effects
contents of T’s will → only affected part is invalid.
Fraud in preventing T from revoking: misrep or lie leads T not
to revoke. Results in no probate. Prop goes to heirs as
constructive trustees until ct determines intended beneficiary.
UNDUE INFLUENCE:
Prima Facie Case: (i) Susceptibility; (ii) Opportunity; (iii)
Active participation; (iv) Unnatural result.
existence when will was executed; (iii) doc clearly identified in
will; and (iv) T intended to incorporate doc into will (assumed if
1-3 are proven).
FACTS OF INDEPENDENT SIGNIFICANCE. Fact would have
existed without will.
POUR OVER WILLS: T devises all assets into inter-vivos trust.
Valid through incorp by ref; independent sig; or Uniform
Testamentary Additions to Trusts Act if trust valid before or at
time of will’s execution.
Presumption: (i) Confidential relationship; (ii) Active
Participation; (iii) Unnatural result. Only affected part is invalid. CODICILS: modify, amend or revokes will. Codicil republishes
will (re-dates).
Statutory Undue Influence: Donative transfer invalid if
transferred to person that drafted instrument or drafter’s family; Effect on Revocation: If T executed will, then codicil, then
revokes codicil → rebuttable presumption that T intended only
person who has fiduciary relationship and transcribed the
to revoke codicil. If T executes will, then codicil, then revokes
instrument; or to care custodian of dependent adult. UNLESS:
will → rebuttable presumption that both will and codicil are
T is related to drafter; will reviewed by independent atty, or ct
finds that no wrongdoing occurred. Consequence → transferee revoked.
doesn’t take if gift exceeds person’s intestate share.
INTERPRETATION OF WILLS
REVOCATION
SUBSEQUENT WILL: express or implied (Will #2 totally
disposes T’s estate).
Revival: If #2 is revoked later, #1 isn’t revived unless T
manifests specific intent to revive through oral stmts at time of
will #2’s revival or if codicil revoking will #2 so states.
MISTAKE:
Mistake in Content: if omission, no judicial remedy b/c cts
won’t rewrite. If addition, remedy possible b/c ct can just cross
out.
Mistake in execution: no probate if no intent, unless reciprocal
or mutual will.
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TRUSTS & ESTATES
Mistake in Inducement: no relief unless both mistake and what
T would have done are expressed on will.
Mistake in Description: Latent (on face, will looks ok) →
introduce parol evid to establish ambiguity and T’s intent.
Patent (on face will is invalid) → CL: no remedy; Mod: use
parol evid.
LAPSE: Beneficiary must survive T. Anti-Lapse Statute: if
predeceased is T’s blood relative and leaves issue, then issue
will step into shoes of predeceased and take, absent contrary
provision.
ADEMPTION: Specific devise (unique); General devise (payable
out of general assets); Demonstrative devise (from particular
source, but if not enough, from general property); Residuary
devise (all the leftovers).
Ademption by Extinction: only specific gifts. If T doesn’t own
specific property, then specific gift is adeemed by extinction,
unless securities change form; conservator sells off assets
(beneficiary will take net sale price) or eminent domain,
casualty or installment sale.
Ademption by Satisfaction: may satisfy a general or
demonstrative gift. Reqt’s: will provides for deduction of inter
vivos gift; T declares contemporaneous writing that gift is a
satisfaction; beneficiary acknowledges in writing the
satisfaction; and prop given in satisfaction is the same as the gift
in the will.
DISTRIBUTION ISSUES
WHAT PASSES? After acquired prop and increases during T’s
life, e.g. dividends and splits, will go to intended beneficiary.
Between death and probate, specific devises will go to
beneficiary; general devises don’t get increase.
Equitable adoption: parties hold out as parent/child.
Stepkids/Foster kids: treated as adopted if: relationship began
during minority; continued throughout parties’ life; and
established by clear and convincing evidence that they would
have adopted but for a legal barrier.
NON-MARITAL KIDS: If domestic partnership, non-birthing
parent is parent if child born during DP; non-birthing DP named
on birth certificate; or makes voluntary promise to pay child
support.
ADVANCEMENTS: inter vivos down payment made by intestate
to heir apparent – same result as satisfaction. Intestate declares
in writing that gift is advancement and heir acknowledges gift
as advancement.
SIMULTANEOUS DEATH: T and devisee die simultaneously →
devisee deemed to predecease T. If Joint tenants → sever JT and
each get 1/2. If H&W → Comm prop and Qualified CP
divided in half. Life insurance → alternative beneficiary or
residuary. Heir must survive for 120 hours to take.
RTS OF SURVIVING SPOUSE AND CHILDREN
OMITTED CHILD: child born after testamentary instruments are
executed and not provided for → child will get intestate share
plus share of assets in trust. Exception: omission intentional on
face of instrument; T had a child and transferred assets to parent
of omitted child; or child provided for outside of testamentary
instrument, e.g. annuity.
OMITTED SPOUSE/DP: same as child, but go through CP/QCP
rules. Except: intentional; provided for in alternative; spouse
signed waiver.
Waiver: voluntary relinquishment of known right whether
signed before or during marriage. Req’ts: waiver in writing;
ABATEMENT: gifts will increase or decrease by operation of law. full disclosure of decedent’s finances; independent counsel by
If must satisfy payment to pretermitted spouse or child, abate
waiving spouse. Not invalid if spouse had or should have had
by: property not passing by will or trust; all beneficiaries pro
knowledge of finances or if waiver was in fact fair. No
rata. To satisfy gen debt, abate by: intestate prop; residuary gift; enforceability if waiver was unconscionable.
gen gift to non-relative; gen gift to relative; specific gift to nonBARS TO SUCCESSION
relative; specific gift to relative.
HOMICIDE: requires conviction or, in all other cases, probate
EXONERATION: extinguishes debt on gift. CL: T personally
court determines guilt by preponderance of evid. Killer deemed
liable and executor must pay off debt before passing to
to predecease so that killer not issue take.
beneficiary.
INTESTATE SUCCESSION
ORDER IF NO SURVIVING SPOUSE (“SS”): Issue; Parents;
Siblings; Grandparents; Aunts and Uncles; Step-kids; Next of
kin; Parent in laws; sibling in laws; escheat.
Distribution: Generally, issue of same degree take “per capita”
starting at first level where there is a living being. Strict per
stripes – distribution at first level so long as there is issue.
ADOPTION: adopted kids treated as natural kids. Natural
parents’ relationship severed at adoption unless spouse of
natural parent adopts.
ELDER ABUSE.
NO CONTEST CLAUSE: enforced unless beneficiary, with
reasonable cause, brings contest on grounds of forgery,
revocation, or invalid transfer.
WILL SUBSTITUTES
GIFTS CAUSA MORTIS: gifts made in contemplation of imminent
death. Donor must make delivery by actual delivery; symbolic
delivery (something representative of prop is given to donee; or
constructive delivery (CL: key providing access to corpus OR
Mod: donor has done everything possible to effectuate delivery
& no fraud or mistake).
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TRUSTS & ESTATES
CREATION OF VALID TRUST
(1) PROPERTY; (2) BENEFICIARY (“B”): Unincorporated
associations can only be beneficiary under mod law;
(3) TRUSTEE (“T”): Not fatal if absent; ct will appoint;
TRUSTS
intestate takers. Result if: private express trust ends or fails for
illegality or lack of B; charitable trust if cy pres isn’t an option;
excess corpus; or purchase money resulting trust (X purchases
and is intended B but title is in name of Y).
(4) INTENT: Must be present manifestation – precatory words
not enough; (5) CREATION; (6) VALID LEGAL PURPOSE: If
illegal at creation → excise bad part. If impossible – invalidate
trust at inception and settlor remains owner or allow trustee to
keep property. If illegal condition → trust provided to B free of
condition. If illegal after creation → decree resulting trust.
ALIENATION: Voluntary - allow B to sell or transfer prop
interest. Involuntary: creditors.
TYPES
DISCRETIONARY: T given sole and absolute discretion to
determine how much to pay B. Must be expressly stated in
terms of trust. No voluntary or involuntary alienation. Settlor
(“S”) can trust for himself, but can’t with regard to involuntary
alienation in order to deny creditors.
SPENDTHRIFT: Prevents B from voluntarily transferring future
payments, and creditors from attaching. Same rules as
discretionary.
SUPPORT: T req’d to use only so much income or principle as
necessary for B’s health, support, maintenance or education.
Same rules as discretionary.
HONORARY: trust has no ascertainable B and confers no
substantial benefit to society, but rather a goal of the S. T isn’t
required to carry out goal, but has the power to if he wants. If
not, resulting trust is created.
CONSTRUCTIVE: prevents fraud or unjust enrichment. Applies
if self dealing, fraud, secret trust, or oral real estate trust. (Oral
Real Estate Trust: Deed handed to A for B. A can’t invoke SoF
if: fid relationship between S and A; fraud in inducement on A’s
part; detrimental reliance by B, e.g. takes possession and makes
improvements.)
SECRET: will on face gives gift outright to A, but T requires A to
provide oral promise to use prop to benefit B. Parol evid is
admitted to show T’s intent.
MODIFCATION & TERMINATION
MOD BY S: only if expressly reserved.
MOD BY CT: cy pres; in express trust, ct can deviate from admin
or mgmt provisions, but not the B’s if unforeseen circumstances
or necessity.
TERMINATION OF REVOCABLE TRUST: Maj: S may only revoke
if expressly reserved. Min: S has power to revoke, unless
expressly said irrevocable.
TERMINATION OF IRREVOCABLE TRUST: If all B's and S
consent; if all B’s agree and all material purposes done;
operation of law – if real property in private trust and T has no
active duties.
TRUST ADMINISTRATION AND DUTIES
POWERS: all enumerated; implied (sell prop; incur expense;
lease; borrow (under CL)
DUTY OF LOYALTY: admin trust for B’s benefit. No self-dealing.
DUTY TO INVEST. 3 diff authorities.
(1) State List: in absence of directions, good investments are fed
gov’t bonds, fed insured certs of deposit, 1st deeds of trust,
public co stock. No new businesses or 2nd deed of trust.
(2) CL Prudent Person Test: req’s T to act as RPP investing own
money. Good investments are fed gov bonds, 1st deeds of trust;
fed insured certs of deposit; blue chip stocks; mutual funds. No
new businesses or 2nd deeds of trust.
(3) Uniform Prudent Investors Act: T must act as prudent
investor, as measured in context of entire trust portfolio.
DUTY TO DIVERSIFY. DUTY NOT TO SPECULATE.
DUTY TO EARMARK. CL: if loss, T personally liable. Mod: if
loss, T personally liable only if loss from failure to earmark.
DUTY TO SEGREGATE: no commingling with personal funds or
trust of another.
SEMI-SECRET: will makes a gift to a person to hold as a trustee,
but names no beneficiary. Court decrees a resulting trust; no
parol evid.
DUTY NOT TO DELEGATE: CL: T can rely on professional
advisors, but can’t delegate authority to them. Unanimous T
decision req’d. Mod: T can delegate to professional advisors; T
may act by majority.
TOTTEN TRUST: tentative bank acct trust naming B who takes
whatever is left in acct at death.
DUTY TO ACCT: T must provide B's with stmt of income and
expenses on regular basis.
CHARITABLE TRUST: Restatement: any trust that confers
substantial benefit on society, e.g. help poor, advance educ, help
sick or promote religion. Req’s same as private express trust.
No RAP. If impossible or impracticable, ct will use intrinsic
and extrinsic evid to ascertain S’s intent and determine cy pres,
“as nearly as possible.”
DUTY OF DUE CARE: must act as RPP would as if dealing with
own affairs.
RESULTING TRUST: implied in fact trust based on presumed
intent of parties. T transfers prop to S if alive, to S’s estate, or
DUTY TO COLLECT/PROTECT PROP.
DUTY TO MAINTAIN MARKETABILITY OF PROP.
DUTY TO KEEP TRUST PROPERTY PRODUCTIVE.
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TRUSTS & ESTATES
REMEDIES: damages; constructive trust; tracing and equitable
lien; ratify transaction if good; remove T.
LIABILITY TO 3RD PERSONS: K: CL - T sued in personal
capacity but may get indemnification from trust. T may be sued
directly in rep capacity if K stated so. Mod – if promisee knew
T was acting in rep capacity, T must be sued in rep capacity.
Tort: CL – T sued in rep capacity and, if w/o fault, can get
indemnification from trust. Mod – T sued in indiv capacity and
personally liable if T is at fault. If agent committed neg act in
case of strict liability, T sued in rep capacity.
INCOME AND EXPENSES
LIFE TENANT: Gets income from: cash dividend, interest
income, net business income. Pays expenses for: interest on
loans, taxes, minor repairs.
REMAINDERMAN: Gets income from: stock dividend, stock
split, net proceeds on sale of trust asset. Pays expenses for:
principal of loans, major repairs/improvements.
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