I. Evidence – A. General golden thread to keep in mind – 1. All relevant evidence is admitted unless the admission of that evidence violates some other rule. B. 3 highly tested areas – 1. hearsay 2. character 3. impeachment C. 40 – Judicial Notice – 1. two issues – a. is the fact a fact that is capable of judicial notice (1) Answer – if the fact is indisputable or can be verified through scientific principles. b. Effect of court’s action? (1) Question 1 – is it civil or criminal (a) Criminal – the jury may, but is not required to, accept the fact judicially noticed. (b) Civil case – the factual judicially noticed is conclusively established. D. 68 – worst of the lot question 1. strategy – turn the question around and see which are the best answers, give it a “+”. When you find one you aren’t sure about, leave it blank, and if you know it’s negative give it a “–” and then reevaluate after you’ve gone through the choices. 2. When must the judge make a preliminary ruling? – judge makes preliminary ruling on whether a statement hits within a hearsay exception and ex a. Is a witness an expert? This is something the judge must make a preliminary hearing upon. b. Hospital records as a business record? This is something the judge must make a preliminary ruling upon – were the records made in the ordinary course of business. c. Agency? Does the judge or jury determine agency? d. Dying declaration under the statement of impeding death? This is a valid objection; this is something the judge must determine – whether a statement is made under a hearsay exception. E. 50 – recorded recollection refreshed (not recorded) – 1. anything can be used to refresh the recollection of a witness. This is recorded recollection refreshed. 2. two rules – a. #1 – anything can be used to refresh the recollection of a witness b. #2 – you must make that document available to your opponent and your opponent can introduce that evidence if s/he wants, and you CANNOT object. F. 179 – G. 187 – 1. rule – the judge can interrogate anyone who has testified. 2. exam strategy – if you get a real long evidence question, it is probably H. 60 – 1. she is a competent witness that has something important to say. There really can’t be a rule that keeps this out. 2. she is testifying that the letter was delivered—not to the content of I. character evidence – 1. brief review on character evidence – 8 rules (5 for criminal case) (3 for civil case) – 2. character evidence in a criminal case – a. #1 – prosecutor cannot introduce any evidence of the ’s bad character, if that evidence is to show the probably acted in conformity with that character. (1) No prior crimes, no prior bad acts, etc. if it is to show that the b. #2 – is allowed to present evidence of relevant good character traits to show he acted in conformity with his good character and did not commit the crime. This evidence is limited to reputation or opinion evidence – not specific examples. c. #3 – if the opens the door and introduces evidence of relevant good character, the prosecutor can introduce evidence of the ’s bad character to show character in conformity with that character. Prosecutor can ask ’s character witness if the witness knows of specific instances of the ’s bad character, but cannot introduce extrinsic evidence of those bad acts. (1) opinion – ok. (2) Reputation – ok (3) Questions about specifics – ok (4) No extrinsic evidence d. #4 – prior crimes and prior bad acts CANNOT be used to show the committed the crime charged, but may be admissible to show other things in the case (MIMIKCOP) (1) motive (2) intent (3) mistake, absence of (4) identity (5) knowledge (6) common scheme or plan (7) opportunity (8) preparation e. #5 – if the testifies, s/he automatically places his character of truthfulness at issue, and the prosecutor can attack his character for truthfulness. 3. Character evidence in a Civil Case – a. #1 – cannot introduce character evidence of a party to show that the party engaged in action in conformity with that character trait during the event that gave rise to this litigation. b. #2 – if the party has some other purpose and it is relevant, the rule prohibiting character evidence will not keep the evidence out. (1) Two examples – (a) Negligent entrustment – lends his car to X, who has a reputation as a dangerous, reckless driver. Can the π introduce evidence of X’s bad reputation with respect to driving in order to prove was negligent in his entrustment of his car to X. (b) Defamation – truth as a defense to defamation. “You are a thief”. You can then introduce evidence that he is in fact a thief. c. #3 – if a party testifies, they automatically place their character trait of truthfulness in issue and the other side can introduce evidence to show the person is not truthful. 4. 43 – character evidence – a. This is character evidence introduced to prove action in conformity with the character. The answer is B. b. Why isn’t this habit? (1) Answer – reputation is different than habit. If you see “reputation” it trumps “always” and follow the character rules. 5. 100 – character evidence /negligent entrustment – a. this is a civil case, so generally it is not admissible to show that Jones acted the same way again, BUT it can come in to show something else. b. Choosing between B and C – (1) Answer – C. Why? Because this is a negligence case, so Jones reputation is relevant even if First bank didn’t KNOW (answer B), because the jury could find liability if First Bank didn’t know, but should have known. 6. 181 – character evidence /habit – a. Two rules to keep in mind – (1) Evidence of prior similar occurrences and character evidence is not admissible to show the person probably acted the same way again. (2) Evidence of habit IS admissible to show the person probably acted the same way again during the event that gave rise to the event. 7. 140 – character evidence – a. Character evidence to show the is not the type of person that would commit that crime. b. Here – this is a prosecution for assault with a deadly weapon. The evidence offered is for honesty. That isn’t relevant to the ’s peacefulness. 8. 83 – character – prejudice – a. most times evidence of the ’s previous crimes will not be admitted because it is character evidence to show action in conformity. If, however, the evidence is to show something else, like motive or common scheme. Keep in mind, if the evidence is too prejudicial, the judge can still keep it out. b. A is wrong – if it is to show motive or common scheme, those crimes can get in EVEN IF wasn’t convicted of the crime. 9. 91 – best of the lot – a. B is wrong – the prosecution CANNOT rebut with evidence of specific actions, like crimes. That is criminal character evidence C. b. Answer – C is the right answer. J. 44 – relevancy and issues of exclusion – 1. The statement is admissible unless there is a specific rule of exclusion that keeps the statement out. 2. two rules – a. settlement offers and factual statements made during settlement negotiations are INADMISSIBLE if offered to prove liability, invalidity of the claim, or to show damages. (1) “settlement offers” exception doesn’t apply until there is some kind of a dispute. Statements made at the scene of the accident RARELY qualify as a settlement offer on the MBE. b. evidence of payment of medical expenses or offers to pay medical expenses are INADMISSIBLE if offered to show ’s liability for the injuries. K. 123 – 1. subsequent repairs – a. repairs after an accident, those repairs are NOT admissible to prove negligence or elements of strict liability in tort for the sale of a defective product. b. BUT, if there is some other reason to admit the evidence, the evidence can be admitted. There are two relevant exceptions – (1) To prove ownership or control when that is an issue in the case. (2) To prove it was possible to show there was a safer condition if it is claimed that it is not possible to make the repair. 2. Answer – B. L. Impeachment of a witness – 1. definition – evidence offered to show a witness that has testified was not telling the truth. 2. methods of impeachment – there are 5 regularly tested on – a. prior inconsistent statements – (1) Rule – a witness can be impeached for prior statements inconsistent with trial testimony. (a) This can occur during cross-examination (“isn’t it a fact that you said . . .”) (b) Extrinsic evidence – bring in a witness to testify what the previously testifying witness had said. (2) NOTE – a witness must be given an opportunity to explain, but that can be done before or after the introduction of the evidence. (a) *** admissions do not require opportunity to comment. b. bias (1) Rule – a witness can be impeached based on evidence that the witness might be biased toward one side. (a) This can occur during cross-examination (b) This can occur with extrinsic evidence. c. prior criminal convictions (1) Rule – can introduce evidence of witness’s criminal convictions – (a) Any criminal conviction involving dishonesty or false statement must be admitted to impeach. (b) Other criminal convictions, can be admitted if it isn’t prejudicial. (2) This can be shown through extrinsic evidence or during cross examination. d. prior bad acts (1) Rule – which reflects unfavorably on truthfulness of the witness. (a) This can be asked about on cross-examination ONLY. (b) Extrinsic evidence is NOT allowed to show prior bad acts. (i) One exception – if the prior bad act also shows a bias, then extrinsic evidence will be allowed. e. reputation for untruthfulness (1) Rule – evidence can be shown of witness’s bad reputation for untruthfulness. (2) This can be shown with extrinsic evidence. 3. 57 – impeachment – a. B – B is wrong because it doesn’t meet a hearsay exception. If it did, though, then B would be the correct answer. (1) If the statement is made about your current state, then it meets the exception. (2) Because this statement looks back in time. 4. 200 – impeachment – a. A versus C – C is NOT admissible because there is no criminal conviction. At most, it is a prior bad act that shows dishonesty, but cannot be proven with extrinsic evidence 5. 103 – impeachment – a. Rule – Generally, cannot present evidence to bolster a witness that isn’t first challenged. HOWEVER, if there is ANY OTHER REASON for allowing that evidence, the evidence will be admitted. (1) Here, could show good character to show he wasn’t the sort of person that would embezzle funds. b. D is a correct statement of a rule of law, but does not apply here. 6. 32 – bias or prior bad facts? – a. Answer – bias prevails. Can introduce the evidence to show bias even though it is also a prior bad act; therefore, extrinsic evidence is admissible. M. Hearsay and exceptions to the hearsay rule – 1. Basic rule – all hearsay is inadmissible unless it meets an exception. 2. Definition of hearsay – 801 – a. 801(b) – Definition – an out of court statement offered for the purpose of proving the truth of the matter asserted. (1) If the evidence is offered for any other reason, it is admissible. b. 801(c) – Non-hearsay – (1) Verbal acts – these are statements that change legal rights (e.g. offer or acceptance) (2) Effect on the listener – this is admissible to show knowledge on the part of the listener (e.g. notice). (3) Prior inconsistent statement to impeach – this is to show that the witness tells multiple versions and should not be believed. c. 801(d) – not hearsay (even though offered to prove the truth of the matter) – (1) admissions by a party opponent – relevant statement by the party to the action OR by an employee to a party to the action made during the course of employment used against the employer by the opposing party. (a) 3 questions to ask yourself – (i) Was this out of court statement made by a party or an employee? (ii) Is the evidence offered by the opposing party? (iii) is the evidence relevant? (2) prior inconsistent statement given under oath at a trial or other proceeding – always admissible to show impeachment BUT if offered to show the substance of the statement is true, it is hearsay UNLESS the requirements here are met. (a) Two requirements – (i) Given under oath at a trial or proceeding OR (ii) Prior inconsistent statement qualifies under a different hearsay exception. (b) If you get a prior inconsistent statement – 50% of the time it will only be admissible to impeach and 50% of the time, it will be for substance as well as impeachment. (3) prior identification made by a witness currently on the witness stand – 3. Exceptions to hearsay – here are the big 9 – for the first 6, doesn’t matter if the out-of-court declarant is available or unavailable. For the last 3, the out of court declarant must be unavailable. a. Present sense impression b. Excited utterance c. Statement showing current physical or mental condition d. Statements for the purpose of medical diagnosis or treatment e. Recorded recollection f. Business records – 3 key points – (1) The judge can reject the business records, if judge determines the source of the information contained in the records or the method of preparation lacks truthfulness. (2) The person making the record does NOT have to possess personal knowledge of the information recorded. (3) If a document is admitted as a business record, it is admissible to show what is in the record AND what is not in the record. g. Former testimony h. Dying declarations (1) Do not need to be dead. (2) In a criminal case, must be homicide, NOT attempted homicide. (3) Admissible in ANY civil case. i. Statements against interest 4. How to answer hearsay questions – a. #1 – is the statement offered for the truth of the matter asserted b. #2 – is the statement removed from definition of hearsay under 802(d). c. #3 – does the statement qualify under one of the exceptions to the hearsay rule. 5. 33 – hearsay – effect on the listener – a. This is offered to show knowledge by the listener. It is NOT offered to show that the flap was actually loose, just that that listener knew that it was loose. 6. 5 – hearsay – admissions – a. C – 7. 120 – admission by silence – a. Rule – adopted admission – if at any previous time, a party hears an accusation and fails to protest when a reasonable person would not have failed to respond, it is an adopted admission and is admissible as non-hearsay admission by a party. b. B – if the court finds a reasonable person would not have reasonably denied such a statement under the circumstances, then it is not an admission by silence. c. A and C – either of these could be right if the other was wrong, but if make the assumption that B assumes, then B is the best answer. d. 36-40 answer choices that say “IF”. When you see the word IF, assume that everything after that can be established in the case. (1) #1 – as soon as you see it, underline the rest of the sentence and accept it. (2) #2 – scratch it out IF it is absolutely the wrong answer. (3) #3 – if it is a possible right answer, work the rest of the picks. If you can’t decide between a few of the “ifs”, take that one because it is probably the right answer. If it isn’t a clearly wrong answer, it is usually done to make the right answer. 8. 121 – eye witness identification if witness is unavailable – a. Answer – NO, it is a hearsay statement that doesn’t meet an exception. b. Prior identifications are admissible under 801(d) IF the prior identifier is the witness on the witness stand. 9. 122 – hearsay? a. It is a hearsay statement – it is an out of court statement offered to prove the truth of the matter. NOTE HERE, the out of court declarant is the person on the witness stand, but that doesn’t make it not hearsay. She is testifying to a statement she made out of court to the police to prove that the statement she made was in fact true. 10. 96 – a. C – 11. 113 – impeachment /prior inconsistent statement – a. clearly Oscar’s statement was an excited utterance. That isn’t what this question is about. This question is about Oscar’s later statement to Arthur. Arthur’s testimony about Oscar’s statement can be used ONLY for impeachment. 12. 189 – dying declaration – a. In criminal case, dying declaration must be a homicide case. Here, this is attempted homicide, so it is NOT a dying declaration. 13. 76 – business records – N. 162 – jury smelling the coat – 1. Rule – before an object is admissible, the witness must introduce additional evidence to show what the evidence is (e.g. authentication that is the coat in question and that the coat is as it was for the purposes of the litigation). 2. Answer – A. O. 141 – justify the result (why Warrant can testify) – 1. before the recording could be used against Byron, there must be a foundation layed. 2. Rule – lay person must have knowledge of the voice of the person he is authenticating. It is NOT required that the witness be familiar with the party’s voice before the dispute arose. P. 137 – expert opinion testimony – 1. Rule – expert can base an opinion on information obtained from ANY source provided it is the type of information reasonably rely upon by experts in that field. That information can be based on non-admissible evidence (e.g. hearsay). Q. 138 – impeachment on collateral issue – 1. Rule – cannot produce testimony from other witnesses if the sole purpose is to prove the witness testified accurately on that collateral point. R. 58 – state of mind (intent to do something used to show he actually did it) – 1. Rule – these are admissible as hearsay exception. 2. there will be at least 1 question about this. When you see the out of court statement relating to plans for the future, S. 160 – husband/wife privilege – 1. two rules – a. spousal immunity – (1) * in a criminal case (2) * spouse cannot be forced to testify against their spouse (3) this is not limited to confidential communications (4) need to be married at time of testimony b. confidential communications privilege – (1) * in any case (civil or criminal) (2) * a spouse can prevent a spouse from disclosing (3) * confidential communications made during marriage (a) need to be married during the communications 2. roman numeral questions – decide if the statement is true or false and mark it at that time – a. then look at the answer choices and see if T. How to succeed on evidence 1. all relevant evidence is admissible UNLESS there is some rule to keep it out 2. 3 things to master – a. character evidence b. impeachment c. hearsay and its definition and its exceptions II. Real Property A. Introduction – 1. average score on real property closer to like 50%. 2. this is all black letter law – they don’t play word games, because the subject is hard enuf. 3. areas – a. Future interests – only 3 questions b. Mortgages AND Recording statutes and chain of title – 6-8 – B. 18 – estates – 1. wanda has a life estate 2. D,D,D will own in fee simple absolute 3. Answer – A – life tenant is personally liable for the taxes. a. When it is a property tax issue, b. Should the remaindermen pay the taxes? Answer – they are not obligated to, but they should to protect their interests in the property. C. Future interests – 1. 159 – defeasible fees a. any crazy condition on the transfer of property as long as that restraint is not a restraint on alienation. – “To Merch for so long as tobacco is not sold on the premises . . .” (1) for Merch, this applies to Merch’s heirs and assigns as well. b. what happens if tobacco is sold on the property? Answer – it is a defeasible fee and the owner of the property owns in fee simple (not absolute) and can lose the property if there is the occurrence of some event. (1) If Purch sells tobacco on that premises, then it is c. heir versus someone with interests in real property? (1) Answer – it goes to the person with interests in the real property. d. quitclaim deed – (1) no warranties or representations. (2) It is just Merch saying “I am doing to sell you whatever I own in the property”. 2. 139 – defeasible fee – a. defeasible fee – upon the happening of a stated event, the possessor can loose the property. b. Two defeasible fees (1) Fee simple determinable – on happening of the condition, you automatically lose the property. (2) Fee simple subject to a condition subsequent – on the happening of the condition, you do not automatically lose the property. Instead, you lose it only if the grantor (heirs) come in and take the property. (a) Unless “retake” “reenter” language is included, it is a fee simple determinable. 3. 182 & 183 – life estate and defeasible fees – a. 182 – “to my wife Karen, for life, remainder to my nephew Lester.” (1) doctrine of waste – open mines doctrine – when there is a life estate, you can continue the activities on the land BUT NOT additional activities. b. 183 – “to my sister Ida, her heirs, and assigns; but if Ida should die without producing issue, then to the American Cancer Society.” (1) This is a defeasible fee (Ida loses property because of the happening of a stated event; her dying without issue). (2) 3rd party to defeasible fee – executory interest. ONLY the third party interest is subject to rule against perpetuities. (a) Rule against perpetuities – the rights must vest within a life in being + 21 years. (i) What’s the measuring life? Use the life of the person that has the defeasible fee (here, Ida). (3) C – deny the injunction because Ida has a defeasible fee simple. (a) Why not D? Answer – the doctrine of life estates does NOT apply to defeasible fees. 4. 150 – defeasible fees a. fee simple determinable and an executory interest (in ASPCA). b. “To Harry Lupus, so long as one or more dogs are kept on the property; if dogs are no longer kept on the property, then to ASPCA . . .” (1) this is to Harry Lupus, but because it is a defeasible fee, it goes to his heirs and they are still subject to that condition and take as fee simple determinable. c. SO, Harry Lupus has a fee simple determinable. Remus (grantor’s heir) has a possibility of reverter. d. Charities – (1) Rule – charities are exempt IF both the holder of the fee simple and the executory interest are BOTH charities. (2) Application – Harry Lupus isn’t a charity, so it doesn’t apply. Had Harry Lupus been the American Cancer Society, then it is a charity-to-charity exception. 5. 175 – class gifts – a. there are 3 questions – (1) usually one is defeasible (2) usually one is rule against perpetuities (3) the third could be anything – consider studying class gifts – b. Rule against perpetuities – whenever there is a long series of property conveyances, consider rule against perpetuities. (1) Rule against perpetuities short cut – will not work on all the problems (it works on the easier ones and is helpful if you’re struggling on future interests) – (a) #1 – the last person mentioned by proper name and all prior parties take (b) #2 – the next subsequent party not mentioned by proper name takes (c) #3 – all additional parties lose and the property reverts back to the grantor or the grantor’s heirs. c. 175 – “I grant Farmacre to Harold, my husband, for life, then to my nieces for life, then to children of my nieces in fee simple.” (1) #1 – Harold takes (2) #2 – my nieces take (3) #3 – children of my nieces (they lose). d. two rules for class gifts – (1) the class opens when the property is transferred from the grantor. (2) The class closes when any member of the class has a present possessory interest in the property. e. 175 – “I grant Farmacre to Harold, my husband, for life, then to my nieces for life, then to children of my nieces in fee simple.” (1) NOTE – on a will, the clock doesn’t begin to tick until grantor dies and the property is transferred via will. (2) SO, who has what (a) Harold = life estate (b) Beth and Anne = life estate D. Tenancy – 1. #25 – joint tenancy and termination – a. A is the correct answer. Why? When both joint tenants ACT TOGETHER, then it does not defeat joint tenancy. (1) It is Not the giving of the property, it is the transferring of the property without the other’s knowledge that destroys tenancy. 2. # 169 – joint tenancy and termination – a. Rule – you can do whatever you want with the property, but since you are acting alone it terminates the joint tenancy. E. Landlord-tenant – 1. 114 – landlord-tenant – recovery for repairs – a. Answer – privity of contract OR privity of estate – can recover from Grinch (privity of estate) or O’Hara (privity of contract). (1) How? Here, Grinch did not agree to fulfill that obligation under the lease. Since the contract was not assigned, there is still privity of contract with O’Hara. Because Grinch has the property, 2. 129 – holdover tenant – 9% got this question right a. What is the rent here? Answer – it will be the rent under the new lease IF the landlord told the tenant of the new rent prior to the end of the old lease. (1) SO, that is $600 (leaving B and D). b. What sort of tenancy is created? (1) Answer – D – this is a 5-year commercial lease. If it was a residential lease, the answer would be B (month-to-month). Where it is a commercial lease, the length of the tenancy becomes a lease for the length of the original lease but not to exceed one year. 3. 132 – sublease/assignment and liability for tenant – a. assignment versus sublease – who can sue under assignment, who can sue under sublease. Where do I remain secondarily liable. F. Easements and licenses – 2-3 questions – 1. 46 – easements – when do they exist and when are they terminated – a. the deed included an express easement. b. 3 things to know – (1) when/how are easements created (2) when/how are easements terminated (3) difference between easement and license c. Answer – B. (1) Why did people choose D – easements bind servient owners ONLY IF there is notice. Here, the deed was recorded, so there is record notice. d. Index information – (1) THIS IS ALL RED HERRING INFORMATION. DON’T WORRY ABOUT IT. e. Notice – (1) Record notice is the best (2) Actual notice (3) Inquiry notice 2. 51 – off the wall question – a. wants to condition the use of the property – (1) only for 2 years (2) only for public recreational use b. This normally would be a lease. Why isn’t it here? Answer – because B (lease answer) doesn’t include the second limitation that Edward wants. c. Answer – C: easement. This is odd; never seen this before. But, we back into this because nothing else works. G. 37 – covenant /equitable servitude H. 168 – Fixtures – 1. Home did not have an oven. A mortgage was taken out on the home. Mortgages attach to not just the home itself, but to the fixtures in the home as well. 2. Who has the superior interest? Answer – the appliance store. Why? Because the mortgage on the home was done first and then the oven came after that. I. 42 – equitable conversion /doctrine of part performance – 1. this is a ridiculously hard question, don’t worry about it. 2. Why is this here? Because it tests equitable conversion and doctrine of part performance. J. 145 – marketable title – 1. the choice was between C and D. What do you do here? When there are two answers (one factually based and one is legally based), choose the one that is legally based. a. C = gap in the title. b. D = Donna cannot supply marketable title. K. Adverse possession – 1. 13 – adverse possession – a. It is true that Olive owns the property. However, the correct answer is A because Olive cannot yet provide marketable title. Why? Answer – because Olive must first go before a judge and get the judge to give her a deed with her name on it, so she has marketable title. 2. 97 & 98 – a. 97 – (1) Answer – C. Why? This is adverse possession (key phrase: “on land he thought he owned”). NOTE – the third paragraph is incompetency. (2) Incompetency rule – incompetency prevents a statutory period from beginning, but not from prevent it from continuing to run. b. 98 – (1) Answer – D. What does he legally have (they don’t ask this)? Answer – a license. If he has a license, that means he doesn’t have adverse possession. L. Deeds – 1. 111 – Conveyance of land a. Need to have a deed and a delivery. Recording the deed in the new owners name creates a rebutable presumption. b. Here, what happens is that the rebutable presumption is rebutted because grantee refuses to accept. 2. 185 – Legal description of the deed – a. rule – this is supposed to be a closed in shape. (1) The deed must describe this unique piece of property. 3. 78 – when the original description of the property is incorrect (difference acreage) a. Answer – D. Billy will win IF the difference of two acres is found to be material and if the reduction in price is not an excessive variance from the parties’ agreement. (1) if the difference is not material (250 acres versus 249.78 acres), both sides are OBLIGATED to complete the sale. (2) If the difference is material and it is less than the bargained-for amount, then the purchaser has the option. (3) If the difference is material and it is more than the bargained-for amount, then the seller has the option. 4. 149 – right of first refusal – a. Rule – rights of first refusal ARE subject to the rule against perpetuities. (1) Rule against perpetuities – right must vest, if at all, within a life in being + 21 years. b. Must this vest within 21 years of his life? Answer – YES. Why? “I hereby grant to my brother and his heirs and assigns a right of first refusal as to my 80 acres, exercisable within 45 days of any proposed sale or transfer of ownership by me.” (1) This obviously must vest within 21 years of his life, because it is based on a sale by him. 5. 112 – who owns the property a. Answer – C. b. who owns the property? (1) First sentence – intend to give the property upon death (a) “elvira eventually decided that when she died she should give her home to D as a reward for her companionship and kindness.” (2) Second sentence – it occurs right now. (a) “She had her attorney draw a valid warranty deed conveying the property to D, then executed it and gave it to D.” (3) So which is it? Answer – it has to be right now because it doesn’t say that the deed has that language (“upon my death”) on it. M. Mortgages – 1. 26 – subject to and assumes – a. Answer – they are both liable. This is a mechanical question. “Subject to” versus “assuming” 2. 4 – notice jurisdiction – a. this is a notice statute “without notice” and no “first recorded” b. Why was this question difficult? Because the property was originally sold to A and then we subdivided the property and sold the front half and mortgaged the back half. (1) Is A liable for the mortgage? c. Diagram – front half (1) O – A (BFP, no recording) (2) O – T (BFP, no notice, recorded) (a) T recorded. But even if he hadn’t, this is a notice jurisdiction and T would still prevail over A. (3) T – C (with notice, recorded) d. Fight between A and C, who wins? Answer – C. Why shelter rule. If O sold to C, C would have lost against A because C had notice. BUT, C didn’t buy from O, C bought from T. T had superior rights to A, so when T sells to someone else, that person is doing to have superior rights to A. e. Diagram – back half – (1) O – B (BFP–mortgage, no notice, no record) (2) With mortgages, we use the recording statutes the same for mortgages as we do for sales. f. Fight between A and B? Answer – A has to take subject to B’s notice. (1) Does it matter that A recorded before B? Answer – NO. The question is: did you have notice at the time of initiating the contract. If no, then no notice. 3. 30 – race-notice – a. January – Smith mortgage (no record) b. February 15 – signed a land sale contract with Jones c. February 16 – Smith took out another loan on the property (1) Can you do that? Answer – YES, owner can do that as long as he is the owner. Can do whatever you want until date of sale. d. Who has rights? Answer – both banks have claims superior to jones. (1) Junior Bank recorded February 16. (2) Senior Bank recorded April 3. (3) Jones recorded April 6. 4. 55 & 56 – notice statute, PMSI, negotiated mortgages a. 55 – (1) purchase money security interest (PMSI) – anyone that lends money for the original purchase of the property, they have a PMSI and it is the HIGHEST form of security interest. (2) If he has an enforceable interest, it has to be $30,000, because that is what he purchased from C. Why is that? He gets the amount on the face of the note and he should make a profit because he runs the risk of not getting paid, so he has a right to the $30,000. (3) Someone is going to get really hurt here. Is it B or is it D? Answer – we say that B is liable because D has the legal document saying he is entitled to that money. b. 56 – (1) Answer – C. (2) notice jurisdiction – since A bank had not recorded and there was no actual or recorded notice, then D wins. 5. 176 – foreclosure – a. draw a horizontal line starting on the left with first mortgagee and then second and then third and so on. (1) Whoever forecloses takes first and then move to the right and get money to those people (if there is anything left). Otherwise, they get nothing (unless the jurisdiction allows for deficiency judgments). (2) All liens and mortgages to the left remain on the property and the new owner takes subject to them. b. If proper notice is NOT given, take the parties to the right of the foreclosure party and move them to the left of the foreclosing party. N. Water rights – 1. riparian doctrine of reasonable use = majority rule; a. using for agriculture = artificial use b. domestic use = natural use 2. prior appropriation doctrine = 3. Rule – if the upstream person is using the water III. Torts A. Introduction – 1. notice one half of the questions do not include a cause of action. 2. what are the torts? a. intentional torts – ABC-FITT (1) assault (2) battery (3) conversion (4) false imprisonment (5) intentional infliction of emotional distress (6) trespass to chattels (7) trespass to land b. non-intentional torts – PAW (1) product liability (2) abnormally dangerous activity – strict liability (3) wild animals c. negligence 3. consider: reading call of question and answer first 4. average score on torts: 18 of 34 B. Intentional torts – 1. 45 – Ax case – a. Chuck threatened Chloe and as he’s doing so, the axe flies off and handle and hits her. b. Answer – D. He attempted to commit an assault and ended up making contact with her, which creates a battery. This is transferred intent – went from one tort to another. 2. 92 – different doctor for surgery a. B – there was no consent, no real emergency, so this is an nonconsensual to offensive touching b. NOTE – informed consent – 3. 64 & 65 – a. 64 – (1) this is about assault. So A and B are wrong. Intentional torts do not require physical injury or intent to cause physical injury. (2) C – if the officer had reasonable suspicion in suspecting the π was a shoplifter. There can only be an assault if the police officer’s actions were unreasonable. b. 65 – false imprisonment damages – (1) the tort here is false imprisonment, not intentional inflectional of emotional distress, so no extremely outrageous conduct is required. 4. 9 – conversion & leaf blower – a. conversion = fair market value of the chattel AT THE TIME OF THE CONVERSION – not the replacement cost or the cost at the time of trial. (1) It was worth $300 at the time of conversion. b. Conversion versus trespass to chattel – (1) Conversion – $300 (cost at the time of conversion) (2) Trespass to chattel -$150 (the damage to the leaf blower) 5. 79 – trespass to land a. intent = also includes knows to a substantial certainty. b. Plaintiff complained to the defendant, who took no action. The result was the plaintiff’s strawberries were ruined. c. What is the proper tort here? Answer – trespass. Intent is met here IF there is knowledge to a substantial certainty. d. Damages for trespass – (1) Nominal damage if there are no damages to the land e. Who can sue for trespass? (1) Answer – owner, tenant. Not employees. f. What includes trespass? (1) Particles are included but noise is NOT – that’s nuisance. 6. 165 – a. Private necessity – if the drives onto π’s land to avoid a greater harm, the is NOT liable for trespass. BUT, the is liable for the dames caused. 7. 188 – a. intentional infliction of emotional distress versus negligent infliction of emotional distress (1) *** NOTE – bar usually does NOT say which kind of emotional distress. b. How to figure out which one? (1) Is there outrageous conduct by ? (2) Is there intent by defendant? (3) Did the ’s action cause severe mental distress? c. B – if she knew with substantial certainty that it would cause injury, there is (1) Extreme recklessness is included in “intentional tort” C. 11-12 – liability to doctor for seizure – 1. first seizure = free seizure because there is no prior knowledge. After the first (like after the first dog bite), the is now on notice and it is foreseeable. 2. #11 – doctor’s liability to π – a. intentional tort? No. b. product liability? No. c. strict liability? No. d. so, it must be negligent. The (doctor) must have been negligent with regard to the injury to the third person (π). (1) Answer – A – this is proximate cause. 3. #12 – a. this also is a negligence question. b. D – Eddie is NOT negligent UNLESS he has reason to believe he might lose consciousness. D. 7 – defense of property – 1. rule – cannot use deadly force to protect your property. E. 166 – grant motion to dismiss 1. must prove all 4 elements to avoid dismissal – a. duty b. breach c. causation (1) proximate (2) actual d. damages 2. B – the jury could find that it was foreseeable that Mark would cause damage to cars in the parking lot IF Martha left him unattended. 3. Negligence per se – NO, the statute that prohibits a child from being left in the car is to protect the child, not to protect everyone else in the parking lot. F. 84 – rescuer question – 1. rescuers are foreseeable π’s – danger invites rescue. G. 95 – wrongful death – negligent entrustment – 1. Rule – if an employer hires an employee and the employee causes injury to a third person, the employer may be liable for negligent entrustment (separate from a possible agency approach) H. 104 – informed consent – 1. what duty owed to a patient from a physician where the π has an adverse reaction. 2. Answer – A – no breach IF a reasonable person in π’s position would have used the cream even when told of the potential side effects. I. 133 – child negligence J. 115 – injury going into the kitchen and slipping and falling – 1. what was his status when he entered the kitchen? a. If trespasser, he’s going to lose because no duty owed to trespassers. b. If licensee, owner must notify of known dangers. c. If invitee, owner must investigate and notify of known dangers. 2. Answer – B – unless patrons were welcomed into the kitchen, he is a trespasser. K. 86 – directed verdict, incident on a train – 1. there can be no directed verdict IF the π has provided evidence of all the elements. 2. Answer – A, no evidence of negligence. L. 101 – directed verdict? 1. no strict liability 2. no intentional tort 3. no product liability. 4. SO, it’s a negligence case. a. A – no evidence of breach of duty by defendant. 5. what gives rise to strict liability a. fumigation b. blasting c. crop dusting d. storage or transportation of highly toxic chemicals or explosives e. operation of nuclear power plant. M. 156-157 – wind tunnel – 1. 156 – a. Answer – D, if there’s a defect and the failed to discover the defect and could have discovered the defect, then there is negligence. b. Strict liability and products – 402(a) – (1) Product must be BOTH defective and unreasonably dangerous (2) Π must be suing a proper defendant – must be a commercial supplies in the business of selling that product (commercial seller) (3) Proper π – (a) Buyer of the product (b) User of the product (c) Foreseeable bystander (d) Rescuer (4) New, used, and leased products may come within strict liability IF they are a dealer of that product (5) If a product is unavoidably unsafe (6) Can also sue in negligence or breach of warranty (7) Misuse of the product – IF it is foreseeable, then the is liable. 2. 157 – a. D. N. 71 – lawsuit over tires when driver was speeding – 1. A – tire was dangerously defective when purchased. O. 190-192 – mall fact pattern – 1. 190 – a. Answer – C – if the sleigh was not being used in a reasonably foreseeable manner, there is no proximate causation. Foreseeability /lack of foreseeability key in this case. 2. 191 – contributory negligence a. traditional contributory negligence = if the π was even 1% negligent, π is barred from recovering. b. Answer – C, the father wins unless he was contributorily negligent. c. Res ipsa = does NOT apply when there’s any π liability. 3. 192 – pure comparative negligence. a. Damages are 100,000 and Doug is 10% negligent for his own injuries (90,000). The mall was 60% and the father is 30% liable. So, shopping mall is liable for 90,000 but can recover through contribution 30% from father. P. 99 – defective parachute 1. if you are going to sue in strict liability, must be a commercial supplier. Q. 152-153 – runaway lawnmower and indemnification – 1. 152 – product liability – a. Randall will lose, UNLESS he can show that the mower cluth engaged because of some defect in manufacture. 2. 153 – Randall’s liability a. this must be based on negligence. b. Answer – D, she recovers IF a reasonable person under the circumstances would have restrained the mower before it entered the street. R. 72 – bear question 1. this is a wild animal, thus strict liability. S. 177-178 – 1. 177 – a. Oxxon is engaged in an abnormally dangerous operation. (1) 4 factors to determine abnormally dangerous – H.A.N.D. (a) High risk of serious bodily injury or death (b) Activity cannot be made completely safe (c) Not a common activity (d) Degree of danger versus the benefit to the community 2. 178 – storage of abnormally dangerous products – a. what’s the theory of recovery? (1) Intentional tort? No (2) Strict liability? Hmmm, they were the commercial supplier of the nerve gas, so yes. b. Answer – strict liability; so A is the right answer. T. 52 – defamation 1. best defense – truth. 2. status of the π – a. public figure or public official, high burden of proof by π (must prove acted with malice (knowledge or reckless disregard for the statement’s truth AND falsity). (1) What’s the standard? Answer – clear and convincing evidence. 3. libel versus slander – a. libel – don’t need to prove damages, they are presumed b. slander – need to prove damages UNLESS slander per se (L.U.M.P.) (1) loathsome disease (2) unchaste character of a woman (3) moral turpitude (dishonesty) (4) professional or business U. 27 – privacy – 1. 4 branches of privacy – C.L.I.P. the branches a. commercial appropriation b. (false) light c. invasion of seclusion – recording conversations, peeping tom, etc. d. public disclosure of a private fact 2. Answer – intrusion of physical seclusion V. 80 – nuisance 1. Rule – the nuisance must disturb a person of ordinary sensibilities in the community. IV. Criminal Law and Criminal Procedure – A. Introduction – 1. 33 questions a. 20 = criminal law b. 12 = criminal procedure B. Criminal law – 1. *** Know the elements of the offenses – 2. specific versus intent crimes – need to know which are which 3. specific intent crimes – a. which crimes – (1) property offenses – (a) larceny (b) burglary (c) robbery (2) inchoate crimes (a) solicitation (b) attempt (c) conspiracy (3) first degree murder (a) this isn’t in the common law, so they will usually tell you the standard, but regardless it is a SPECIFIC INTENT crime (4) attempt – if doesn’t have the requisite mental state, they will not be guilty for attempt b. Defenses – only apply to specific intent crimes – (1) Voluntary intoxication (2) ANY mistake of fact (even if unreasonable) 4. malice crimes – a. arson b. murder 5. general intent crimes – a. all other crimes that are not specific or malice crimes 6. Elements required for commission of a crime – a. Actus reus – physical act b. Mens rea – mental state c. Concurrence of actus reus and mens rea (1) E.g. at the time of the actus reus, must be mens rea too. d. Causal connection e. Harm 7. *** NEGATING AN ELEMENT REQUIRED FOR THE COMMISSION OF A CRIME IS ALWAYS A BETTER ANSWER FOR WHY THE DEFENDANT IS NOT GUILTY THAN TO SAY A DEFENSE EXISTS. 8. Chart for Murder – a. Intentional killings (specific intent) (1) This is first degree murder b. Intent to inflict serious bodily injury c. Felony murder (1) Unintentional killing that occurs during the commission or attempted commission of an inherently dangerous felony. (2) Inherently dangerous felony – B.A.R.R.K. (a) Burglary (b) Arson (c) Rape (d) Robbery (e) Kidnapping (3) Unintentional killing (a) If the killing is intentional, felony murder doesn’t apply. (4) During commission or attempted commission (5) Depraved heart murder /involuntary manslaughter (a) Depraved heart murder = unintentional killing that occurs from recklessness (b) Involuntary manslaughter = unintentional killing that occurs from criminal negligence. (c) How to figure out the answer – the area where people are MORE likely to appear, that makes it depraved heart. 9. Murder – a. 54 – common law murder – (1) we are looking here for most reckless – which is C (2) A – a criminal act must be a volitional act; it was not in A. (3) B – intent to kill a rat, not the same as intent to kill a human being (4) D – no intent and cannot establish malice. b. 23 – common law murder – (1) B – extreme indifference to an unjustifiably high risk to human life. (2) Why is A wrong? Answer – because it implies he would not be guilty if police were unreasonable in using deadly force. Here, he is still liable because there is an unjustifiably high risk to human life. (a) TIP – WHENEVER DEALING WITH AN ARMED AND DANGEROUS FELON, DEATH IS ALWAYS FORESEEABLE. c. 118 – manslaughter – (1) we are looking here for LEAST reckless (2) D – deserted commercial district. (3) C – “ignites the utility shed a few feet from his neighbor’s home” (4) A – had the intent to kill, that intent will be transferred to the killing of the neighbor and neighbor’s wife (5) B – depraved heart – high degree of recklessness. d. 126 – most serious crime – (1) what is the most serious crime? Answer – Murder (A) is more serious than manslaughter, so A more directly answers the call of the question. (2) Provocation? Answer – NO, words are not enough. 10. Attempt – a. two prong test – (focus on the specific intent prong) (1) specific intent to commit the crime (2) “substantial step” – conduct that brings the within close proximity of the offense. b. 49 – attempted murder – (1) Specific intent to kill – he can be guilty of neither because he was angry and was only intending to smash into her car. c. 38 – reckless damage – (1) voluntary intoxication is NOT a defense to a reckless intent crime. (2) reckless is a lesser standard of fault than knowing conduct. 11. Mens rea – a. 39 – mens rea – (1) “Dudley believed . . .” (2) statute “knowingly cause over $200 damage . . .” (3) Answer – A, because it addresses the “knowingly” requirement. 12. Mistake of law – a. ** no defense even if reasonable. b. 186 – (1) “Terrence was aware” “Terrence was aware” “Terrence was unaware…” (2) because mistake of law is NOT a defense, he will be convicted 13. Accomplice liability – a. One who aides, counsels, commands, or encourages another in the commission of a crime AND who is present when the crime is committed, is generally guilty in aiding and abetting. b. 67 – Exception to accomplice liability – (1) members of a class, who are sought to be protected by the statute that ha been violated are EXEMPT from liability. (2) IF YOU CAN NARROW THE CHOICES DOWN TO TWO CHOICES, CHOOSE THE CORRECT STATEMENT OF LAW OVER THE CORRECT STATEMENT OF FACT. 14. Inchoate crimes – a. inchoate crimes – (1) solicitation – where the asks, encourages, or requests another to commit a crime. (a) merger – doctrine of merger applies – solicitation occurs the moment the asks the other to commit the crime. IF the crime is carried out, the is guilty of the crime (and solicitation has mergered). (2) Attempt – specific intent to carry out the crime AND substantial step (a) Merger – if the crime is carried out, the is guilty of the crime (and attempt has merged). (3) Conspiracy – specific intent, agreement, two or more parties, guilty for foreseeable (a) No merger. b. 53 – what crime can be convicted of – (1) where the person solicited goes far enough to be liable for attempt, the solicitor is liable for attempt. (a) Because the murder was not successful, he’s guilty of attempted murder. (b) Conspiracy? Doctrine of merger doesn’t apply, so a can be guilty of attempted murder and conspiracy to commit murder. (c) Solicitation merges, so A and C are out. c. 63 – withdrawal – conspiracy – (1) Ron is guilty of conspiracy, even though he withdrew. d. 199 – most serious crime – (1) Answer – B. (a) Burglary – We definitely have burglary (hotel room constitutes a dwelling for burglary). She (2) Robbery = larceny + assault. SO, larceny and assault are lesser included offenses of robbery. (a) Taking must be from a person’s presences (larceny) (3) So, larceny and/or assault will NEVER be the right answer if it is included with robbery. e. 193 – larceny (1) which fact pattern is the most likely to be found guilty of larceny. (2) C – mens rea (ate the meal without intent to pay for it). (3) A – incorrect. Voluntary intoxication IS a defense for a specific intent crime. 15. 19 – battery/self defense – a. general intent crime (unlawful or reckless application of force upon another). b. C is correct. Self-defense 16. 180 – mock robbery a. Rule – mock robbery = no intent. 17. 164 – least helpful to defense – a. Answer – B. 18. Arson – a. 161 – least amount of malice – (1) D – no malice. b. 109 – attempted arson – (1) what intent do we need? Answer – attempt is a specific intent crime and you want to negate the mens rea requirement. (2) NOTE – doctrine of transferred intent does NOT apply to attempt. 19. 134-135 – a. 134 – (1) Answer – A. (2) B – withdrawal? Answer – NO, it is only a defense as to subsequent crimes. (3) C – inconsistent with facts because Sean is guilty of conspiracy. (4) D – Aaron with Ralph? b. 135 – attempt – (1) test satisfied – he took a substantial step and had the specific intent. 20. 93 – battery and accomplice liability a. battery = general intent crime b. accomplice liability = (1) helped someone else commit the crime AND (2) have a culpable mental state. (1) some courts require actual intent. Others just require reckless. C. Criminal procedure – 1. big picture – a. #1 – search and seizure /4th amendment – b. #2 – confessions /Miranda /5th amendment – c. #3 – right to counsel (Messiah) 2. 4th Amendment – a. 119 – exclusionary rule – (1) Rule – exclusionary rule does NOT apply to grand jury proceedings and a grand jury can consider any evidence available to indict a . (2) Answer – A. b. 1 – search and seizure – best argument for illegal search and seizure (1) A – reasonable expectation of privacy because the greenhouse was not held open to the public. A is also okay because it is a search incident to a lawful arrest. (2) rule – to assert a 4th amendment right, a person must have a reasonable expectation of privacy with respect to the place searched and the item seized. (a) *** there is no such expectation of privacy in objcts or places held out to the public. (3) Ariel surveillance – (a) One’s home – highest expectation of privacy; 4th amendment protection. Police cannot conduct ariel surveillance on the curtilage, they need a search warrant. (i) What can they do? Answer – fly over regularly navigable areas and look down a far as the naked eye can see. (b) Business/factory – Dow Chemical – (i) Special lenses and advanced photo equipment okay. (c) Open fields – (i) Unoccupied or undeveloped area outside the curtilage of one’s home. (ii) No 4th amendment protection; no probable cause needed to search. c. 143 & 144 – (1) must have a reasonable expectation of privacy. (2) For a valid search, need: probable cause AND a warrant. (3) Search warrant exceptions – (a) Consent (b) Automobile (c) Plain view (d) Search incident to arrest (i) what about an unlawful arrest? Answer – the search incident to that unlawful arrest is also invalid. (e) Hot pursuit (f) Exigent circumstances (4) 143 – informant information to police (a) probable cause to believe cocaine is in the trunk (i) if probable cause to search, can search the whole car (b) search incident to lawful arrest – (i) can search the car under search incident to lawful arrest, police can search the area within the immediate control of the driver (e.g. the passenger compartment) d. 127 & 128 – Terry – Stop and Frisk – (1) requirements to stop – police officer may stop a person without probable cause for arrest IF she has an articulable and reasonable suspicion of criminal activity. (2) Requirements to frisk – if the officer reasonably believes the person is armed and dangerous, the police can frisk the person. (a) Scope of the frisk – limited to a pat down of the outer clothing for weapons. BUT the officer may reach into the suspect’s clothing and seize evidence they believe is a weapon or contraband. (3) 127 – (a) this is a legitimate stop and frisk. Evidence is admissible. (4) 128 – (a) must have standing to challenge a search. Two reasons that doesn’t occur here: (i) didn’t have possession of the property (ii) didn’t have a reasonable expectation of privacy – no standing to object to search 3. Miranda – a. Things to note for Miranda – (1) Defendant’s 5th amendment right to counsel. (2) Custodial interrogation. (3) Voluntary of coerced (a) Miranda doesn’t apply to spontaneous statements, so those statements can be used. (b) Two types of questions – (i) 1. informant in the cell with minding his own business when confesses. (a) Miranda not applicable. (ii) 2. informant in the cell with not asking questions but offering a story to get the to confess. (a) There, Miranda applies. b. #6 – agree to talk, refuse to sign anything – (1) What about agreeing to talk but refusing to sign anything or write anything down? Answer – this is not a request for counsel, so the statements are admissible and can be used. (2) What about lying to the attorney or the defendant in that situation? Answer – no problem, police can lie. 4. 6th amendment right to counsel – a. right to counsel is offense specific. It does not apply to other crimes. 5. 69 – a. Tier I – unconstitutional. b. Tier II – constitutional. c. How do burdens work here? Answer – prosecution must prove elements beyond a reasonable doubt. Tier #2 is constitutional, though, because the defendant can be required to prove defenses to same level. 6. 173 – double jeopardy – Blockberger test. a. Rule – two crimes do not constitute the same offense if they each have at least one different element. (1) E.g. A,B,C and A,B,X is okay. (2) E.g. A,B,C and A,B,C,D is NOT okay. 7. 75 – a. right to counsel – any criminal conviction that includes a maximum penalty of any jail time. V. Contracts – A. 14 – saving the dog 1. no bargained for exchange. This is unenforceable under American law. 2. even if the original offer was accepted, there was no consideration. a. Stay away from “moral obligation” questions. B. 15-17 – vodka 1. 15 – what type of contract? a. Requirement contracts are FULLY enforceable under UCC (don’t have to purchase a particular number of goods); instead the buyer must act in good faith. b. Bilateral contract? Answer – YES. 2. 16 – measure of damages – a. nominal damages? Answer – NO, not valid if actual damages are available. b. Cost of cover? Answer – YES. c. Loss of profits? Answer – YES. d. SO, II and III, and D is the answer 3. 17 – what is Czarina’s best defense? a. Answer – C because of impracticability (social upheaval in the country). b. What do you need for impracticability? (1) Unforeseen problem at the time the contract was entered in to (2) The risk was not assumed by the defaulting party (3) Extreme hardship if that contract is enforced. C. 142 – firm offers under the UCC – 1. Under common law, an ofer can be withdrawn at any time prior to acceptance, which is true even if the offeror specified the length of time it would be open. a. Two exceptions – (1) Offeree’s detrimental reliance on the offer remaining open (2) Offeree gave consideration for the option 2. Under UCC, firm offers will remain open for no longer than 3 months, even if the two common law exceptions are not met. D. 28 & 29 – 1. 28 – what is the agreement? a. Quasi-contract is NEVER a description of an agreement. Instead, it is the name of a remedy sometimes given to the π. b. Answer – C, an offer for a unilateral contract. 2. 29 – a. C – it was a contract that was performed. E. 41 – offer /acceptance /counteroffer – 1. The original offer was rejected. Cannot come back later and accept it. 2. There was no contract, so D is correct because Art’s offer was not accepted and Art is not liable. F. 102 – battle of the forms – 1. Buyer of goods (retailer) makes a written offer to wholesaler to purchase X number of goods. BUT, the acceptance by the seller changes 2. 3 rules – a. If the offeree (usually the seller on MBE) accepts the offer and at the same time makes a material alteration or addition to the offer, there is a contract under the original terms of the original offer. (1) IF the offeree doesn’t like the offer, must reject and make a counteroffer. b. If the offeree accepts with a non-material change, then the change is incorporated UNLESS the offeror objects within a reasonable period of time. (1) If the offeror objects within a reasonable time, then the change is rejected. c. What is a material change and what is a non-material change? – (1) Rule of thumb – any change that substantially affects the economic risks or benefits or changes the usual remedy for breach of contract will be considered a material change. G. 148 – non-conforming goods – 1. B sends non-conforming goods, what are the rights and responsibilities of the parties? 2. Acceptance through shipment of goods in three ways a. A promise to ship the goods b. The prompt shipment of conforming goods c. The prompt shipment of non-conforming goods. The prompt shipment of those goods is considered an acceptance and a breach. (1) IF the non-conforming goods are accompanied by a letter (accommodation notice) saying the goods are non-conforming. 3. When there is an accommodation notice, that is an offer and that offer can be accepted or rejected. a. Buyer can accept b. Buyer can reject (but is NOT entitled to any damages). c. ???? Buyer CANNOT accept some and reject others. H. 47-48 – 1. 47 – daughter versus dad’s estate a. C is the correct answer. b. This does not need to be in writing (no dead man statute) c. D is wrong because death does not excuse performance. d. If the π could win under valid contract or some other theory (unjust enrichment, quasiconttract promissory estoppel), valid contract is the better answer choice. 2. 48 – daughter versus mother’s estate a. this is a justify the result question – defend the answer b. if you give up something you have a right to do, that is good enuf for consideration. c. Statute of frauds question – promise to pay for the debt of another? Answer – it might be, it’s the only answer that works. 3. What happens if after 6 months (when she’s given up smoking), can dad revoke? a. Answer – NO. Why not? Answer – because an offer for a unilateral contract cannot be revoked after the other party has started performance. 4. What if the offer was to get her to stop using cocaine? a. Answer – no contract because there’s no consideration: she has no legal right to do cocaine, so no consideration. The contract itself is not illegal, so that is wrong. I. 24 – 1. Rule – guarantees – under statute of frauds, a promise to answer for the debt of another MUST be in writing to be enforceable. a. EXCEPTION – if the main purpose was to benefit the person making the benefit, then the promise does not have to be in writing. J. 125 – mistake – 1. mutual or unilateral mistake? a. Mutual mistake – about a material issue will probably allow voiding the contract b. Unilateral mistake – will not prevent formation of the contract UNLESS the party that did not make the mistake knew or should have known of the mistake. K. Modification – 1. must first determine – are you applying common law or UCC because the rules are different. a. Common law – must be consideration given for the modification OR the modification will not be enforced (e.g. modification requires consideration). b. UCC – no consideration required for modification BUT the parties MUST act in GOOD FAITH. 2. 136 – modification under common law – a. no consideration, so no binding contract for modification. L. 171-172 – 1. 171 – “trade usage” – parole evidence rule a. there will be one question on this. Usually the evidence will end up being admissible. b. Parol evidence – cannot produce additional evidence to vary the material terms of the contract when the parties intended the writing to be the agreement. (1) Exceptions – (a) To attack the validity of the question (e.g. illegal deal) (b) To show the meaning of the terms used (c) To show the true consideration paid (d) Show the contract didn’t reflect the basic understandings of the parties (e) Collateral agreements, side deals (f) ** to show trade usage of the terms or course of dealings to show a contract covered by the UCC. 2. 172 – cure under UCC if within time a. Rule – Buyer rejects goods because of defects. If the UCC applies, the seller has until the date of the contract to cure and sell conforming goods. (1) Exception – if the seller reasonably believes the goods conformed but they didn’t, then the seller is given a commercially reasonable amount of time to cure. M. Third party beneficiaries – 87 & 88 – 1. 3 favorites – a. Do you in fact have a third party beneficiary OR is the third party an incidental beneficiary? b. When can the contract be modified or canceled by the original contracting parties without the consent of the third party beneficiary? (1) A contract can be modified or cancelled by the original parties to the contract UNTIL the rights of the third party beneficiary have vested. (2) When do the rights of third party beneficiary vest? Answer – in 3, and only 3, situations – (a) 3rd party is asked or required to assent to the contract and she assets. (b) Detrimental reliance by 3rd party (c) 3rd party brings a lawsuit to enforce the contract (i) who wins the lawsuit is not relevant. Once the suit is brought to enforce the contract, the contract is frozen and the original parties cannot modify the contract without the consent of the third party beneficiary. c. If the third party can sue, what defenses can be raised by the defendant? (1) Any defense that he could have raised against the original contracting party. 2. #3 – promissory estoppel a. to win under promissory estoppel (1) promise (2) reasonable expectation or reliance on that promise (3) reliance (4) the interest of justice requires enforcement of the promise. b. If promissory estoppel applies, it’s A. if not, it’s C. (1) Answer – A, there was promissory estoppel. 3. #34-35 – a. #34 – (1) the risk of loss shifts to the buyer because “F.O.B. City” means. For the purposes of risk of loss, delivery was complete when the goods were dropped off at the common carrier. b. #35 – assignment of duties – (1) can assign duties but will still be responsible for breach of damages. 4. 124 – assignment of benefit (gift) a. no consideration is required. b. This is enforceable. c. This is revocable. (1) When is an assignment not revocable? (a) When the obligor paid the assignee. (b) Detrimental reliance (c) Assignment for consideration. d. An assignment CANNOT be revoked in three situations – (1) The assignee collects (2) The assignment paid consideration (3) The assignee detrimentally relied on the assignment. e. An assignment CAN be revoked in all other situations. f. Revocation always takes place when the assignor accepts payment from the obligor. 5. 108 – a. assignment doesn’t have to be in writing. No consideration is required. b. Why is A wrong? Answer – because you don’t need consideration for a valid assignment. N. Accord and satisfaction – 1. accord – if B is under a contractual obligation to A (e.g. owes him money or has to paint his house), they can substitute for a new and different obligation. a. result – it suspends the obligation under the original contract until he performs the accord. 2. satisfaction – B’s performance satisfies his obligation under the original agreement. a. if B doesn’t perform, A can sue under the accord OR under the original contract. 3. 61 – is the accord binding? a. Answer – YES. if the contract is not covered by the UCC, stay away from “good faith” picks. The common law doesn’t really care about “good faith”. b. Answer – C. 4. 62 – sues under original contract before B had a chance to complete performance? a. Answer – YES. the accord suspends B’s obligation until he performs (or fails to perform) under the accord. O. Breach /material breach – 1. 105 – “I might not be ready to start singing until 2/10” a. it is NOT a repudiation because (1) NOTE – expressions of doubt as to one’s ability to perform will not support a theory f anticipatory breach. There must be a clear statement or indication of an intent to breach. 2. 106 – can contract be cancelled or can π just seek damages? a. Answer – it could have been a material breach b. Pick the answer with “IF” if you can’t figure out otherwise. c. Answer – C. (1) The breach here is probably not material, but C makes it material by using “no, unless . . .” 3. 107 – a. Doctrine of impossibility for personal service contract – in a personal services contract, you are excused for that period of time and will not be liable for any damages that result, unless the contract specifically says you will be. 4. 195-196 – a. 195 – (1) “start on April 15,after the spring thaw” – (a) A is the answer. This is the failure of a condition precedent. (b) Why isn’t this a material breach? This is not a material breach (time of completion might be critical), but time of start is not a material breach. b. 196 – (1) C – this is what the party intended. If an answer sounds like what they must have intended, that is a pretty good choice. 5. 22 – volume seller (Neri) a. Answer – D ($1000). (1) Why $1000? Π is entitled to $3,000 (profit on first boat). BUT, since he already has the $2000 deposit, so an additional $1000. (2) Why volume seller? Answer – because the π P. 147 – time of the essence – 1. Answer – YES. court is skeptical of time of the essence language in a contract. Here, thought, it will be given effect. How do we know that? a. Not boilerplate – it was handwritten in. b. A valid reason is supplied. Q. 167 – damages – 1. Rule – place non-breaching party in the position s/he would have been in had the contract been performed. R. Hot topics in contracts – 1. formation – a. 17 question – offer, acceptance, consideration, and consideration substitutes 2. UCC on the sale of goods – a. How does the UCC apply to the sale of goods and how does that differ from the common law? See Conviser Mini-Review. 3. 3rd party beneficiary problems 4. statute of frauds and exceptions to the statute of frauds 5. damages S. 20 specific rules and fact patterns for contracts – 1. no consideration because no bargained-for exchange a. fact pattern – someone receiving a benefit and promise to pay for benefit and then fail to perform promise. 2. requirement contracts under the UCC – a. buyer is required to use good faith in determine how many 3. firm offers under the code 4. acceptance of offers through conduct 5. counteroffers reject offer and then cannot be accepted without a new offer 6. battle of the forms 7. shipment of non-conforming goods a. was there an accommodation notice? 8. restriction of a right as consideration a. e.g. stop smoking 9. statute of frauds a. e.g. promise to answer for the debt of another MUST be in writing 10. modification of an existing contract under common law a. need consideration 11. modification of an existing contract under UCC a. consideration not required 12. unilateral mistake fact pattern 13. parol evidence rule AND know the exceptions by name 14. elements of promissory estoppel 15. 3rd party beneficiary where there is a modification of existing contract without third party beneficiary 16. 3rd party beneficiary brings a lawsuit; what defenses are available? 17. assignments. Consideration NOT required a. consideration is one way of stopping revocation of assignment, but not necessary for assignment to be effective 18. anticipatory breach a. expressions of doubt do NOT constitute anticipatory breach 19. illness in personal service contract is an excuse. 20. volume seller and buyer in breach