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58 Cards in this Set
Agency - Subject Outline
Principals CORRAL Their agent's activities.
CREATION of agent/principal relationship
OBLIGATIONS – loyalty, obedience, stewardship
RIGHTS of parties
RATIFICATION by principal
AUTHORITY – express, implied, apparent
LIABILITY - primary & vicarious (respondeat superior)
TERMINATION of agent/principal relationship
Agency - Creation
Creating an agency relationship is as easy as ABCD.
ASSENT (usually requires mutuality)
BENEFIT conferred upon principal
CONTROL of agent by principal
DURING and within scope of agent's employment
Civil Procedure - Personal Jurisdiction acrostic
My Parents Frequently Forgot to Read Children's Stories
fair play and substantial justice
relatedness of contact
Civil Procedure - Requirements for Certification of Class Action
DECANT vintage 23(b) before you pour it into a class.
roughly DEFINABLE class of which P is a member
judicial ECONOMY served
claims have COMMON legal theory or arise out of same transaction or occurrence
named parties must ADEQUATELY represent class
potential Ps too NUMEROUS for joinder
claim of named P must be TYPICAL of the class
23 B - action must fall within one of three categories of FRCP 23 (b)
Civil Procedure - reasons to grant Motion to Dismiss
In SIDEBAR, Plaintiff Finally admitted the claim should be dismissed.
STATUTE of Frauds
INFANCY or incompetency
subject matter of claim DISCHARGED in bankruptcy proceeding
ESTOPPEL (collateral estoppel or res judicata)
claim BARRED by statute of limitations
ARBITRATION and award
RELEASE from claim by plaintiff
PAYMENT by defendant
FAILURE to state a claim upon which relief can be granted
Constitutional Law - Limitations on Legislative Power
As your congressman, I SWAP CAPITAL for DEFICIT.
INSOLVENCY (Bankruptcy) - shared with states
SPENDING (for general welfare)
WAR declaration - raise/support military, legislate wartime economic/social conditions
AFFAIRS related to Foreign commerce
ROPERTY - rules & regulations on federal lands, including police power in DC
COMMERCE - interstate
ALIENS, naturalization, citizenship
POSTAL Service (limited by 1st & 4th Am.)
INVESTIGATION of facts related to subjects over which Congress may legislate
TAXING to Raise Revenue (general welfare)
ADMIRALTY - navigable waterways
LEGISLATE!!! (rather than execute or adjudicate the law)
DELEGATION of legislative authority (Chadha limitation on Pres veto power & bicameral structure)
FINANCE - necessary/proper to coin $; create banks, fed reserve, credit system
set INFERIOR federal court jurisdictional limits
CIVIL rights enforcement (13th, 14th, 15th Am.)
INTELLECTUAL Property - patent & copyright
Constitutional Law - Presidential Power
The president can eat at PF chang's with one CAVEAT.
PARDON convicted federal criminals
COMMANDER in chief of the armed forces
APPOINTMENT of ambassadors, federal judges and superior officers
VETO power over acts of congress
EXECUTIVE agreements and privileges
ADVISE congress on state of the union in special session
Due process - Fundamental Liberties
Courts strictly scrutinize government action involving a STAR VP CAMPER.
freedom of SPEECH
right to TRAVEL
freedom of ASSOCIATION
freedom of RELIGION
right to VOTE
right to PRIVACY
Abortion ("undue influence" branches w/intermediate scrutiny)
Marriage (including dissolution)
Education of children outside public schools
Related persons' right to live together
Constitutional Law - Preemption by Federal Law
Federal law can PUSH around state law.
UNIFORMITY of federal regulatory scheme
SIMILARITY between laws
not HISTORICALLY left to State
Constitutional Law - Dormant Commerce Clause
(limitation on state action)
Nonresident Statutes Are Rude.
SUBSTANTIAL nexus between state interest and burden on non-resident
NONDISCRIMINATORY intent, construction and application
APPORTIONED between residents and non-residents that reflects fundamental fairness
RELATED to State services or resources
Constitutional Law - Obscenity
The porn on Miller's LAPTOP is not obscene in the privacy of his home unless it includes kiddie porn.
Miller v. California
LACKS literary, artistic, political or scientific value
AVERAGE person, applying contemporary community standards
appeals to the PRURIENT interest in sex
TAKEN as a whole
patently OFFENSIVE depiction of sexual conduct
POSSESSION of obscenity in privacy of home OK but child pornography can be entirely prohibited
Unavailability of Privileges & Immunities claims
if U don't give a CRAP, you can't claim privileges & immunities.
UNITED STATES government
RESIDENTS of the state whose law is being challenged
Contracts - Common Law
Essential Contract Terms
Time of performance
Identification of parties
Contracts - Termination of Offer
Don't offer IDLE CIDER that's expired.
INCAPACITY of offeror
DEATH of offeror
LAPSE of time
EXPRESS or implied rejection
DESTRUCTION of Ks subject matter
EFFECTIVE termination under mailbox rule
REVOCATION communicated to offeror before acceptance
Contracts - Termination of Options
three ways options can DIE
DESTRUCTION of subject matter of option
EXPIRATION of stated option time
Contracts - Parol Evidence Rule
DECAF Includes parol evidence but a FOAM LID keeps the contract from forming.
DECAF I - elements of parol evidence rule
FOAM LID - parol evidence that will serve as a def to formation
reveal DEFENSE to contract formation
EXISTENCE of a condition
CONTRADICTS, varies or adds to integrated writing
clarify ADDITIONAL terms (UCC)
FINAL writing intended but not accomplished
INTRODUCE consistent collateral subordinate agreement that would not normally be included in an integrated writing
ORAL condition precedent
LACK of consideration
Contracts - Discharge of Duty to Perform
IF A NIMROD is discharged of his duty to perform, so are you.
FRUSTRATION of purpose
ACCORD and satisfaction
OCCURRENCE of condition subsequent
DEFENSE to formation
Excuse of Conditions &
Discharge of Duty to Perform
WIVES PAD their pockets with excuses to get out of contracts.
WIVES PAD - these conditions excuse performance:
Waiver (knowingly accepted defective performance)
Impossibility (objective - nobody could perform)
Voluntary disablement (implied repudiation)
Estoppel (other party says don't perform)
Subsequent agreement of parties (mutual rescission, modification, novation, substitution)
Prevention of performance (intentional or negligent hindrance)
Anticipatory repudiation (present, absolute, unequivocal renunciation of obligation)
Divisibility of contract duties
Contracts - Formation by Quasi-Contract
I painted your CURB so you owe me.
CONTRACT implied in FACT or at LAW
UNJUST enrichment if defendant allowed to keep benefit without legal detriment
REASONABLE expectation of being compensated
BENEFIT conferred upon defendant by express request or implied permission
Contracts - UCC Article 2
warranties are Fully TEAMED with goods sold.
FITNESS for a particular purpose
seller's warranty of TITLE
EXPRESS warranties written into contract
AFFIRMATION of fact or promise made by seller relating to goods (written or oral)
warranty against ENCUMBRANCES
DESCRIPTION of goods in advertisement, brochure or catalog
Corporations - Contents of Articles of Incorporation.
It's A PAIN to write the articles of incorporation.
AGENT authorized to receive service of process
NAME and address of corporation
Actions Requiring Shareholder Approval
Shareholders deserve A DAMN SALAD if the corporation makes a big change.
AMENDMENT of certificate of incorporation that changes quorum, maxi/super majority, preemptive or cumulative voting rights, and/or corporate purpose
ASSET sale, lease or exchange (>75% of assets)
MERGER or consolidation
SURETY interests in debt not acquired for corporate purposes
change of AGENT for service of process
change of LOCATION of corporate office
ABOLISHING or limiting directors’ liability for negligence
Valid Reasons For Judicial or Voluntary Dissolution
To dissolve a corporation, just I.D. the WOLF in the boardroom.
DIVERSION of corporate assets to directors/officers
WASTE (including that which results from deadlock)
OPPRESSION of minority shareholders
Criminal Law - Crimes Requiring Specific Intent
It's a specific intent crime to Purposely FLAME CRABS.
Murder, first degree
Criminal Law - Crimes Requiring General Intent
It's a general intent crime for MARK to FIB.
Murder in the commission of a dangerous, statutorily enumerated felony
Criminal Law - Strict Liability Crimes
If you pick a SCAB, you're strictly liable as a criminal.
CONTRIBUTING to the delinquency of a minor
ABNORMALLY dangerous activities
Exceptions to Search Warrant Requirement
SHAPE up WISEACRE or I'll search you without a warrant.
STOP (articulable, reasonable suspicion) & frisk (armed & dangerous) of outer clothing
WIRETAP w/ one party’s consent
INCIDENT to lawful arrest
ADMINISTRATIVE searches (e.g. Border, Airport)
CONSENT to search expressly granted
ROUTINE, non-discriminatory checkpoint stops
EAVESDROPPING on conversation with no reasonable expectation of privacy
Exceptions to the Exclusionary Rule
U SAID G was fruit of the poisonous tree but he's not.
USE for impeachment
ATTENUATED chain of causation between tainted evidence and illegal action
INTERVENING act of free will
GOOD faith of police & magistrate in issuing invalid warrant
Evidence - Non-Hearsay Regardless of Testimony
SANE evidence is not hearsay so it's admissible.
STATE of mind
ADMISSION by party opponent
EFFECT on listener
Evidence - Introduction of Character Evidence at
MIMIC the criminal before introducing character evidence.
MODUS operandi or preparation of plan
INTENT or knowledge, absence of mistake or accident
COMMON scheme or plan
Professional Responsibility - Duties To Client
When playing 5-Card STUD with a client's money, I must be a responsible professional.
CCCCC (5-Card) STUD:
COMMUNICATE with client
do not reveal CONFIDENCES
avoid CONFLICTS of interest
render CANDID advice
SAFEGUARD client's money & property
TERMINATE atty/client relationship fairly and properly
UNREASONABLE fees should not be charged
act with reasonable DILIGENCE
Withdrawing from Attorney/Client relationship
WE attorneys suffer from MANICURE withdrawal.
attorney is a WITNESS in the case, resulting in unfair prejudice to client
ETHICAL violation will occur if client is represented
MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law
ATTORNEY is being employed to commit past crime/fraud
*proper NOTICE of withdrawal must be given to client
INCOMPETENCY of attorney to handle matter
CRIMINAL or fraudulent conduct required
UNREASONABLE financial burden on attorney
*REFUND all papers/property of client, along with unearned fees, upon withdrawal
EXPENSES or fees promised by client are not paid
*these are procedural requirements of withdrawal
Termination or Expiration of Non-Possessory Interests In Land
REMAND use of that ACRE back to its rightful owner!
RELEASE by party with non-possessory interest (written)
EMINENT DOMAIN (condemnation / taking by regulation or physical possession)
MERGER - common ownership of dominant and servient tenement
ABANDONMENT (non-use is NOT sufficient)
end of NECESSITY
DESTRUCTION of servient tenement
ABUSE - servient landowner may receive injunction & damages
CHANGED neighborhood conditions (equitable servitudes only)
REVOCATION (applies to revocable LICENSES only)
ESTOPPEL - where holder represents intent to abandon & servient tenement so relies
Real Propert - Ways to Sever a Joint Tenancy
to sever a joint tenancy's TTIP, RIP'M apart
TTIP - 4 Unities:
RIP'M - ways to sever a JT:
RIGHT of survivorship upon death
INTER VIVOS conveyance resulting in tenancy in common
by MORTGAGING interest in title theory state
Real Property - Deed Requirements
You can't transfer property unless the deed IS WILD.
SIGNED by grantor
must show INTENT to transfer an interest
LAND conveyed is described
must be DELIVERED
Real Property - Landlord's Obligations to Tenant
A landlord's day is MIRED with responsibilities to his tenants.
IMPLIED warranty of habitability
warrant quiet ENJOYMENT
Real Property - Tenant's Duties to Landlord
WE R UP to date with rent payments.
abstain from committing WASTE
refrain from interfering with quiet ENJOYMENT of other tenants
USE premises for legal activities only
fulfill PROMISES made to repair
Real Property - Landlord's Remedies for Breach by Tenant
Pay the rent or you're DEAD.
DAMAGES for holdover
Torts - Transferred Intent Doctrine
Five Relevant Torts
you Can't BAIL if you intended one tort but did something else
trespass to CHATTELS
trespass to LAND
Torts - Negligence
Alternative Standards of Care beyond "the reasonable person"
SKIDMART didn't HELP that COUPLE so they'll be held to a different standard of care.
SCHOOL and pupils (special relationship)
K duty (contractual special relationship)
INNKEEPER and guests ("highest" duty)
DRAMSHOP laws impose liability upon drinking establishments
MALPRACTICE standards for professionals
liability to AUTOMOTIVE non-paying guests for reckless driving
RES ipsa loquitur
TRAVELERS aboard a common carrier ("highest" duty)
HOSPITAL and patients (special relationship)
EMPLOYER and employees (special relationship)
LANDLORD and tenants (special relationship)
PRISONERS held by law enforcement (special relationship)
CREATION of harm - duty to alleviate consequences of defendant's act when it creates risk of harm to others, even if act was not negligent
OWNER/OCCUPIER of land - varying duties to invitees, licensees and trespassors
UNDERTAKING to act - may not abandon an attempted rescue if defendant leaves plaintiff in worse condition
negligence PER SE - statute conclusively establishes standard for liability (reasonableness of defendant's actions irrelevant)
LOCAL ordinance violation by defendant is "evidence of negligence" by defendant - helps plaintiff establish prima facie case
EMERGENCY situation will lower defendant's standard of care unless defendant's negligence caused the emergency
Torts - Causes of action related to Products Liability
You are liable for harm done if you use your PENIS as a product.
PUBLIC MISREPRESENTATION under restatement 402(B)
EXPRESS warranty under UCC 2-313
IMPLIED warranty under UCC 2-314 to 2-318
fitness for a particular purpose
remote purchasers covered
STRICT products liability - known as "Absolute Liability in Tort" under Restatement 402(A)
Torts - Bases of Strict Liability for Injury to Persons or Property
You will be strictly liable for missing the day if you are not UP at DAWN.
ULTRA-HAZARDOUS, abnormally dangerous activities
DOMESTIC animals with known dangerous propensities
ALL injuries caused by wild ANIMALS
WORKER's compensation (statutory strict liability)
NO-FAULT automobile insurance (statutory strict liability)
Torts - Causes of Action for Economic Injury
causing FAMINE is an economic tort.
FRAUD - misrepresentation of a past or present material fact
ABUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent (prior action NEED NOT have terminated in favor of present plaintiff)
MALICIOUS prosecution - initiation of civil or ciminal proceeding against plaintiff with no probable cause that plaintiff is liable or guilty, malicious intent (prior action MUST have terminated in favor of present plaintiff)
INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party's response
NEGLIGENT misrepresentation - negligent misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff
interference with prospective
ECONOMIC advantage, including contractual relations
Torts - Theories of Vicarious Liability
i DARE Plaintiff to Join vicariously liable tortfeasors.
DELEGATION of non-delegable duties (inherently dangerous work, like excavation)
negligent entrustment (knew of unsafe driving habits)
use by family members for a family purpose
statutory liability for consenting to another's use of the vehicle
RESPONDEAT superior - "master" liable for acts of "servant" if committed within scope of employment
negligent ENTRUSTMENT of dangerous instrumentalities to a child
failure to control child's known dangerous PROPENSITIES
JOINT enterprises - when two or more persons act in concert
Torts - Attractive Nuisance
Test To Determine Liability
An attractive nuisance is a REAL threat to the safety of children.
children cannot RECOGNIZE danger
EXPENSE of making condition is slight compared to danger
dangerous condition on property is ARTIFICIAL
children are LIKELY to trespass on property (and possessor knows or should know)
Torts - Defenses to Intentional Torts
Hell hath no fury like A SCORN'D tort victim.
use of reasonable force to effect an ARREST
SHOPKEEPER's privilege to detain suspect for reasonable time using non-deadly force
defense of OTHERS if protected party was entitled to use same amount of force
RECAPTURE of property if entitled to immediate possession
NECESSITY for public purpose or to abate nuisance
DEFENSE of self, land and chattels under protective privilege
Torts - Limitations on Awarding of Damages
tort damages are measured by how well you FUCC.
FORESEEABLE - damage/injury must be foreseeable at the time duty is breached (proximate cause)
UNAVOIDABLE - no recovery for losses which reasonably could have been avoided or mitigated
damages must be CAUSED by defendant's breach ("but for" causation)
sufficiently CERTAIN - damages cannot be speculative
Trusts - Ways a Trust can be Created
it's WICKED smart to create a trust.
created by WILL (testamentary trust)
INTER VIVOS trust created by transfer of property
CONSTRUCTIVE or resulting trust created as a matter of law
creation of trust by K (contract)
creation of trust by EXERCISING the power of appointment
DECLARATION of trust by property owner
Trusts - Duties of Trustee
The trustee had a duty to make sure the beneficiary wasn't drinking SPOILED CAB.
refrain from SELF-DEALING (duty of loyalty)
PROTECT the corpus of the trust by preserving principal and diversifying the trust portfolio
refrain from usurping OPPORTUNITIES available to trust (duty of loyalty)
INFORM settlor and beneficiaries of transactions involving more than 25% of trust assets and wait for objections prior to executing the transaction
LITIGATE on behalf of the trust when necessary
EXERCISE degree of care, skill and prudence which would be exercised by a reasonably prudent person in managing his/her own property
avoid DELEGATION of duties involving judgment, discretion or power of appointment (proper administration)
COMPLY with terms & duties under trust
detailed ACCOUNTING, including earmarking and segregating trust assets separately from personal assets
refrain from BORROWING funds from the trust (duty of loyalty)
Trusts - Trustee's Defenses for Breach of Duty
A trustee can KIL a suit against him for breach of duty.
KNOWING consent (or waiver) to breach of trustee's duties by beneficiary (implicitly applied to beneficiaries who benefited from wrongful act)
INSTRUMENT contains exculpatory or "hold harmless" provisions. These are enforceable ONLY if breach was merely negligent and trustee lacked bad faith.
LACHES or statute of limitations - failure by beneficiary to timely assert claims
Future Interests - Applicability of Rule Against Perpetuities
RAP music is ECO-friendly.
RULE AGAINST PERPETUITIES
OPEN class remainders
Trusts - Ways a Trust can be Terminated
When a trust wants to be terminated, it yells "Pour some ACID on ME!!!"
PETITION to court by beneficiary, spendthrift provision or settlor (if beneficiary is in agreement)
purpose ACCOMPLISHED, illegal or impossible (such as if the sole beneficiary dies without heirs)
CONSOLIDATION by the court where multiple trusts have same purpose, trustees, settlors and beneficiaries
INCOME interest terminates - corpus is distributed to remainder beneficiaries if all income beneficiaries die (doctrine of acceleration)
unilateral DONOR termination permitted if this right is specified in the instrument. This right is called a "grantor trust," so assets are included in grantor's estate for tax purposes.
MERGER of legal and equitable title when beneficiary and trustee are the same person
EXPIRATION of term specified in the trust instrument
Wills - Elements of a Valid Will
I CAST a valid will into the stream of probate court.
INTENT to devise contents upon death at time of execution
CAPACITY to understand the property, people involved and the effect of executing the instrument.
ATTESTED to by two competent, non-interested witnesses
SIGNED by testator or person directed who is within "line-of-sight"
TESTAMENTARY age of legal capacity
Wills - Eight Frequently Tested
Problematic "Takers" Under the Will
An executor looks to the LIAR DOCS to decide who takes under the will.
LATER spouse not named in existing valid will usually takes all jointly-owned property and the greater of $50k or 1/2 of the separate property under UPC intestacy succession rules
IRREVOCABLE living trusts where the beneficiary is kin (lineal descendants of testator's grandparent) are covered by antilapse statute, but not devises where survivorship is required--all other lapsed devises are added to the residue of the estate.
ADOPTED, half-blood, acknowledged and paternity suit children are treated as natural issues for inheritance purposes under the UPC and most states (exception: children take by right of representation if intestacy rules apply)
a named beneficiary may
REFUSE or disclaim to accept a devise under the will; property is added to residue
subsequent DIVORCE causes all provisions favoring ex-spouse to be revoked unless stated otherwise in the will or if listed as beneficiary of insurance policy or ERISA benefit
OMITTED surviving children usually qualify for a forced share as if decedent died intestate (unless disinheritance can be proved)
CLASS beneficiaries must be sufficiently identifiable; courts refer to statute, testator's intent and applicable rules of construction to determine when class closes
SATISFACTION of testamentary devise cannot be made by including inter vivos transfers of gifts given to beneficiary unless that intent stated in writing (i.e., executor can't deduct $20k gift to beneficiary received while testator was living from a $50k will devise)
Wills - Will Challenges
Grounds To Contest
a Dependable, Constructive UMPIRE decides whether a will can be contested.
DEPENDANT relative revocation may apply if subsequent will or codicil is invalid AND prior valid will is substantially identical & consistent with testator's intent
CONSTRUCTIVE trust may be necessarily imposed to prevent unjust enrichment or injustice to omitted beneficiary (wrongdoer serves as trustee, ha ha ha)
indicia of UNDUE influence (only a CAD ROBS a rich testator)
MISTAKE in the execution (wrong document signed with no intent to make a will--will invalid, parol evidence inadmissible)
fraudulent PREVENTION of a will being written
fraud in the INDUCEMENT
failure to REVOKE
fraud in the EXECUTION
Wills - Undue Influence
Factors to Consider
only a CAD ROBS a rich testator.
CONFIDENTIAL (or fiduciary) relationship exists
ACTIVE participation in will preparation or execution
DISPOSITION to exercise undue influence
OPPORTUNITY to exercise undue influence
undue BENEFIT to alleged wrongdoer
Wills - Classification of Legacies and Devises
Some Grantors Die Really Intestate
SPECIFIC devise or bequest - particular items specified in the will
GENERAL legacy - a sum of money to be paid out of any assets of the estate
DEMONSTRATIVE legacy - a sum of money to be paid from a particular account or upon sale of a particular asset
RESIDUARY gift - everything else not mentioned under a will with a residuary clause, distributed to the primary beneficiaries
INTESTATE property - where there is no will, a lapse, disclaimer, no residuary clause, or the only will was successfully challenged
(NOTE: most states disfavor intestacy--the court will interpret parol evidence to save any document that exists and adequately expresses the decedent's intent)
Wills - Ways to Revoke the provisions of a Will
DIVORCE will AMBUSH beneficiaries.
DIVORCE / annulment (property passes as if the former spouse predeceased testator)
post-will ISSUE (revoked as to that child)
VARIANCE of provisions that increases a non-residuary gift or changes a beneficiary
OBLITERATION by cancellation or physical act (burning or tearing)
by RESTRICTION under slayer statute
CY PRES modification of testator's bequest by the court to continue charitable purpose when impossible, impractical or wasteful to carry out as stated in the will
EXPRESS revocation by subsequent properly executed instrument (including holographic will)
ADEMPTION of property devised but not owned at death
post-will MARRIAGE (as to surviving spouse's intestate share)
BEQUEST advancement paid to beneficiary inter vivos (if gift exceeds intestate share, heir gets nothing)
UNIFORM Simultaneous Death Act
SIGNATURE of testator intentionally defaced
HOLOGRAPHIC codicil modifying a holographic will