MBE and MEE Outlines

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AGENCY
A. Agency Relationships B. Authority & Principal’s Contractual Liability
1. Creation of Agency Relationship 1. Actual Authority: A principal is bound to a contract

entered into by its agent if the agent had actual authority.
Definition: Agency is a fiduciary relationship, where a
person or entity (the agent) acts on behalf of another (the Two Types – occurs when:
principal) AND both parties agree to the relationship. Express Authority – by principal’s explicit directions to
the agent (either orally or in writing)
Elements: An agency relationship exists if: Implied Authority – either:
1) Assent – formal or informal agreement; (a) action is necessary to carry out agent’s expressly
2) Benefit – the conduct primarily benefits the authorized duties;
principal; AND (b) agent acted similarly in prior dealings between
3) Control – the principal has the right to control the principal/agent; OR
agent (control doesn’t need to be significant). (c) customary for agent in that position
(silence/acquiescence can give rise to a reasonable
Characterization by Parties: The characterization of belief of authority in the future).
the relationship by the parties is irrelevant.
Agent has actual authority when acting within their
2. Types of Agency Relationships reasonable understanding of authority, even if principal
§ Universal Agent – has broad authority, authorized for later shows the agent was mistaken.
ALL acts the principal can perform.
§ General Agent – has authority to conduct a series of 2. Apparent Authority: A principal is bound to a
transactions over a period of time. contract entered into by its agent if the agent had apparent
§ Special Agent - has limited authority either for a authority.
specific act/transaction OR a specified period of time.
Apparent Authority occurs when:
3. Termination of Agency Relationship 1) 3rd party reasonably believes the agent has
An agency relationship terminates when: authority to act on behalf of the principal; AND
a) Manifestation that the relationship is terminated by 2) That belief is traceable from principal’s
either party; manifestations.
b) Specified term of authority expires;
c) Death of principal or agent (by operation of law); A principal holds the agent out as having authority
OR when he: (a) gives a position or title indicating authority;
d) Incapacity of principal or agent (by operation of (b) previously held out and did not published a revocation;
law) – except if a durable power of attorney exists. OR (c) cloaked the agent with the appearance of authority.
Death of Principal: – Not applicable if 3rd party had knowledge that the agent
Common Law à revoked regardless of whether 3rd party did not have actual authority.
has notice of principal’s death. – Continues until principal communicates termination to
Some States à NOT revoked until 3rd party has notice of 3rd parties.
the death.
Unidentified/Partially Disclosed Principal à Apparent
Agency Contracts: Principal can terminate the agent at Authority CAN exist.
any time. BUT, principal may be liable for damages if Undisclosed Principal à Apparent Authority CANNOT
agent is terminated prior to the expiration of a contract exist.
(unless agent materially breached contract).
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3. Inherent Agency Power – Protects 3rd parties when Scope Factors – Courts analyze these to determine
dealing with agents even if there is no actual or apparent scope of employment:
authority. i) Conduct is of the kind employee is employed to
perform.
Two groups of Inherent Agency Power: ii) Occurs substantially within authorized time and
First Group: Subjects an employer to liability when an space limits;
agent acts in furtherance of employer’s business and his iii) It is motivated (in whole or part) to serve the
conduct harms a 3rd-party. employer.
Second Group: If an agent violates Principal’s orders and Time, place, and purpose test.
there is no actual/apparent authority, inherent agency
applies when: Not Within Scope of Employment: Conduct is NOT
1) An agency relationship exits; AND within scope if unrelated and not intended to serve any
2) Agent engaged in acts that are generally of a purpose of the employer.
kind that would fall within his actual authority, - BUT see exception below.
but for the violation of Principal’s instructions.
Employer Liability Even If Outside Scope of
4. Ratification – Makes the principal liable for agent’s Employment: An employer will be liable for acts outside
contracts entered into without authority. the scope of employment if:
a) Employer intended the conduct;
Ratification occurs when the Principal: b) Employer was negligent or reckless in selecting,
1) Has knowledge of all material facts or contract training, supervising, or controlling the employee;
terms; AND c) It is a non-delegable duty; OR
2) Assents to the same through words or conduct. d) Agent had apparent authority and 3rd party
(Agent also remains liable if principal was not disclosed) reasonably relied.
Rest. 2nd – Undisclosed principal CANNOT ratify. Intentional Torts: Generally outside the scope.
Rest. 3rd – Undisclosed principal CAN ratify. Exceptions:
a) Act was expressly authorized;
C. Agent’s Contractual Liability b) Act was a natural product of agent’s duties; OR
c) Motivated by a desire to serve the principal.
- Generally, an agent has NO liability if they:
(1) Fully disclose the principal to a 3rd party; AND 2. Liability for Independent Contractors: Generally, an
(2) Act within the scope of authority. employer/principal has NO liability for an Independent
Contractor’s torts.
- Agent will be liable if: Exceptions:
(a) Conduct was unauthorized; OR 1) Inherently Dangerous Activities.
(b) Principal was undisclosed or partially disclosed 2) Non-delegable duty owed by principal.
(no name given) to the 3rd party. 3) Estoppel (principal holds out contractor as his
agent, 3rd party reasonably relied on contractor’s
- Agent may seek Indemnification from a principal if: (1) skill, and 3rd party suffered harm).
agent is liable; AND (2) his conduct was authorized.
D. Vicarious Liability for Agent’s Torts
1. Liability for Agent’s Torts: Under the doctrine of

respondeat superior, an employer is liable for an
employee’s negligent acts if the employee was acting
within the scope of the employment.
Agent acts within Scope of Employment when:

a) Performing work assigned by the employer; OR
b) Engaging in course of conduct subject to
employer’s control.

3. Independent Contractor vs. Employee: Primary
focus is whether the principal had the right to control the
manner and method in which the job was performed.
Courts analyze the following to determine if an employee or

contractor:
1) type of work;
2) pay rate;
3) who supplied the equipment/tools;
4) degree of supervision;
5) degree of skill required;
6) was work for the benefit of the employer’s
business;
7) extent of control principal has over work details;
and
8) whether agent/contractor is engaged in a distinct
business.
E. Fiduciary Duties Between Principal and Agent
Duties Owed by Agent to the Principal:

1) Duty of Care – duty to use reasonable care when
performing agent’s duties.
2) Duty of Loyalty – duty to act solely and loyally for
principal’s benefit.
3) Duty of Obedience – duty to obey all reasonable
directions.

PARTNERSHIPS
Definitions C. Amending the Partnership Agreement
Pship = Partnership The partnership agreement may be amended at any time

with a unanimous vote.
A. Creation of Partnerships
D. Authority to Bind the Partnership
1. General Partnerships (GP): A GP is formed when:
1) two or more persons; 1. Authority to Bind the Partnership: A partner is an
2) as co-owners; agent of the Pship, and generally has authority to bind the
3) carry on a business for profit. Pship for its business (including contracts). To bind the
Pship, the partner MUST have authority.
- Intent to form a partnership is NOT required.
- A joint venture or sharing in gross profits does not Express Actual Authority: A partner receives such
automatically create a partnership. authority from the partners.
- Acts within the ordinary course of business must be
2. Limited Partnerships (LP): An LP is composed of at approved by a majority of the partners.
least one general partner and limited partner(s). - Acts outside the ordinary course of business must
approved unanimously.
An LP is formed upon filing a Certificate of Limited
Partnership with the Secretary of State, which must Ordinary course of business = normal and necessary for
include: managing the business.
1) name of Pship;
2) address of Pship; Implied Actual Authority (Incidental Authority): A
3) name and address of each partner; partner may take actions reasonably incidental or
4) whether the Pship is an LLP; AND necessary to achieve the partner’s authorized duties.
5) signed by a general partner.
Apparent Authority: A partner has apparent authority for
3. Limited Liability Partnership (LLP): In an LLP, all acts:
partners have limited personal liability. a) considered within the ordinary course of the Pship
To become an LLP: business; OR
1) It must be approved by the same vote necessary b) of the kind carried on by the partnership.
to amend the partnership agreement; AND
2) A Statement of Qualification must be filed with the – A partner’s act will NOT bind the Pship when:
Secretary of State containing: 1) partner lacked authority; AND
i. name and address of partnership; 2) the 3rd party knew or received notice of lack of
ii. statement that Pship elects to become an authority.
LLP; and
iii. a deferred effective date (if any). 2. Binding the Partnership After Dissolution: A
partner’s authority is limited after dissolution.
- Filing does not create a new partnership. Actual authority – limited only to acts appropriate for
- The LLP remains liable for any obligations before it winding up the business.
became an LLP. Apparent authority – a partner has apparent authority
B. Creditor vs. Partner to bind the Pship if:
1) partner’s acts would have normally bound the
A person who receives a share of the profits is presumed
Pship; AND
to be a partner UNLESS received in payment:
2) 3rd party did not have notice of dissolution.
a) of a debt;
b) for wages as an employee or independent
contractor;
c) of rent;
d) of an annuity or retirement benefit;
e) of interest/loan charges; OR
f) for the sale of goodwill of a business.

E. Liability of Partners Generally, a judgment creditor CANNOT levy execution of
a judgment for a Pship debt against a partner unless:
1. Liability of General Partners: 1) The partner is personally liable;
2) A judgment is rendered against the partner; AND
Personal Liability: General partners are personally liable 3) Pship assets are exhausted/insufficient to satisfy
for all obligations of the Pship UNLESS (a) otherwise the judgment.
agreed by claimant or (b) provided by law.
UPA (1997) = partners are jointly and severally liable. F. Rights of Partners Among Themselves
UPA (1914) = partners are jointly liable.
1. Sharing of Profits and Losses: Unless otherwise
Incoming Partners: Partners admitted into an existing agreed, profits are shared equally, and losses are
partnership are NOT liable for obligations incurred prior to shared in the same ratio as profits. Any partner who pays
their admission. more than his fair share in losses is entitled to contribution
- BUT, risk losing capital contribution paid to Pship from the other partners.
2. Liability of Limited Partners: 2. Right to Management & Control: Unless otherwise

agreed, each partner has equal rights in the management
Personal Liability: Limited partners are NOT personally and control of the business.
liable for obligations of the LP. - A disagreement for ordinary Pship business need
Exceptions: only be approved by a majority of the partners.
a) Liable for their own misconduct; - Acts outside the ordinary course of business MUST
b) At risk of losing their capital contribution to the be approved unanimously.
Pship; OR
c) May become personally liable if partner 3. Use of Partnership Property
participates in management (depends on the Personal use of Pship property requires the consent of the
state). other partners.
Liability for Participating in Management: 4. Judgment Against a Partner

- ULPA (2001) = no personal liability created when A judgment solely against a partner CANNOT be satisfied
a limited partner participates in the management with Pship property because the partner has no ownership
or control of the business. interest in Pship property. However, a creditor may seize
- ULPA (earlier versions) = personal liability created the partner’s financial interest in the Pship.
for participating in management (but removal of a
director is not considered participation in 5. Remuneration (Payment for Partner’s Services)
management and control). A partner is NOT entitled to remuneration for services
- RULPA = personal liability created, but is liable performed for the Pship unless:
only to persons who transact business with the LP a) There is an agreement to the contrary; OR
reasonably believing that the limited partner is a b) It is for reasonable compensation for services
general partner. rendered in winding up the Pship business.
a) RULPA has a safe harbor provision
excluding certain acts from liability. G. Assignment of Partnership Interests
3. Liability of Limited Liability Partners 1. Assignment of a Partnership Interest

Under RUPA, a partner in an LLP is NOT liable for A partner can only transfer:
partnership obligations. But partners are liable: (a) for 1) his interest in the share of profits and losses; AND
their own misconduct; OR (b) when the partner signs a 2) the right to receive distributions.
personal guarantee for the obligation.
- Any other rights CANNOT be transferred, unless the
4. Judgments Against a Partnership partnership agreement provides otherwise.
A judgment against the Pship is NOT a judgment against
the individual partners. - ALL partners must consent for an assignee of a
- BUT, a judgment may be sought against the partnership interest to become a partner.
Pship and individual partners in the same action.

H. Special Rules for Limited Partnerships - If partner breaches, he may be held personally liable to
the Pship for any losses.
1. Rights of Partners in a LP - No breach will occur if: (1) partner fully discloses
General partner – Has full management rights and information; AND (2) either amends the Pship agreement
control. or all other partners consent.
Limited partner – Has NO say or control as to how the LP - If reasonable, the partnership agreement may eliminate
is run, and DOES NOT have the right to manage or control or alter a duty of loyalty.
day-to-day business. Generally, they are passive, and - Fiduciary duties apply during dissolution (except duty not
have voting rights only in extraordinary situations (i.e. sale to compete).
of Pship or all its assets, amending Pship agreement, or
admitting a new partner). 3. Duty to Provide Full Information
UPA à Partners shall render (on demand by any partner)
2. Limited Partner’s Right to Inspect Records true and full information of all things affecting the Pship.
- Limited partners have the right to inspect and copy RUPA à Partners shall disclose (without demand) full
records the LP is legally required to keep (RULPA). information concerning the Pship’s business and affairs.
- Upon reasonable demand, a limited partner may obtain:
(i) true and full info regarding the state of the business and If a partner breaches this duty, he may be held personally
financial condition; (ii) LP’s tax returns; and (iii) any info liable to the Pship for any losses.
just and reasonable – may be exercised for any purpose.
4. Action Against a Partner for Misconduct
- The Pship can maintain an action against a partner for
I. Duties Owed by Partners
misconduct.
- A partner can also maintain a direct action against
1. Duty of Care – A partner owes the fiduciary duty of care
another partner to enforce the partner’s right, including an
to the Pship and other partners.
action for violating fiduciary duties.
- BUT, a partner CANNOT maintain a derivative action.
Under RUPA, a partner only breaches this duty if he
engages in:
J. Dissociation and Dissolution
a) Grossly negligent or reckless conduct;
b) Intentional misconduct; OR
1. Dissociation (Withdrawal of a Partner)
c) A knowing violation of law.
A partner may dissociate (withdraw) from the Pship at any
If a partner breaches, he may be held personally liable to
time upon notice.
the Pship for any losses.
Events: A partner becomes dissociated from the Pship
A breach of the duty has been found in the following
when:
situations:
a) partner provides notice of express will to withdraw;
§ Violating an agreement or policy of the Pship.
b) occurrence of an agreed upon event;
§ Failing to thoroughly investigate facts before
c) expulsion pursuant to the Pship agreement;
entering into contracts (if it’s gross negligence).
d) expulsion by unanimous vote if it’s unlawful to
§ Acting outside the scope of Pship business without
carry on business with that partner or he
the consent of the other partners.
transferred all of his Pship interest (other than for
security purposes);
2. Duty of Loyalty – A partner owes the fiduciary duty of
e) judicial expulsion;
loyalty to the Pship and other partners. This requires the
f) bankruptcy;
partners to act in the best interests of the Pship.
g) incapacity or death;
h) appointment of a personal representative or
Under RUPA, a partner must:
receiver; OR
1) Account for any property, profit, or benefit derived
i) termination of an entity partner.
from Pship property or business (including
refraining from appropriating Pship assets);
Wrongful Dissociation: Dissociation is deemed
2) Not have an interest adverse to the Pship (a
wrongful if: (a) not consistent with the terms of the Pship
conflict of interest); AND
agreement; OR (b) before the completion of agreed upon
3) Not compete with the Pship (unless agreed
term or undertaking.
otherwise).

- A wrongfully dissociated partner may be liable to the 5. Distribution of Partnership Assets: During the
Pship and other partners for damages, AND may not winding up process, the Pship assets are converted to
participate in the winding up process. cash and distributed in the following order:
1) Outside creditors.
2. Does Dissociation Cause Dissolution? 2) Inside creditors (partners who loaned money to
the Pship).
Under the UPA: 3) Partner’s capital contributions.
- If wrongful dissociation à The remaining 4) Any remaining profits or surplus goes to the
partners may waive their right to wind-up/terminate partners equally (unless agreed otherwise).
the Pship, and instead choose to continue the - If there are insufficient assets to satisfy
Pship by buying out the dissociated partner’s creditors, the loss will be divided among the
interest. partners.
- If rightful dissociation à The Pship MUST be
wound up and terminated. 6. Dissolution of a Limited Partnership
A non-judicial dissolution of an LP occurs upon:
Under RUPA, the remaining partners have the option to a) happening of an event specified in the Pship
waive dissolution, and buy the dissociated partner’s agreement;
interest regardless if the dissociation was rightful or b) consent of all general partners and limited
wrongful. partners owning a majority interest;
c) after the dissociation of a general partner either
3. Dissolution of a General Partnership upon consent of the partners or the passage of 90
days after the dissociation (if the LP does not have
Events: Unless agreed otherwise, dissolution occurs a remaining general partner);
upon: d) 90 days after dissociation of the last limited
a) Notice of a partner’s express will to withdraw; partner, unless the LP admits at least one limited
b) Occurrence of an agreed upon event; partner; OR
c) The business becoming unlawful; OR e) the filing of a declaration of administrative
d) Judicial dissolution. dissolution by the Secretary of State.
Dissolution for a Definite Term occurs:

a) within 90-days after a partner’s dissociation by
death or wrongful dissociation, if it’s the express
will of at least half of the remaining partners to
wind up (rightful dissociation constitutes the
expression of the partner’s will to wind-up);
b) upon the express will of all partners to wind up;
OR
c) upon the expiration of the term or completion of
the purpose.
4. Dissolution vs. Winding Up vs. Termination
Dissolution à Occurs upon the occurrence of any

specified statutory event (see above).
Winding Up à Is the period between dissolution and

termination, in which assets are liquidated to satisfy
creditors.
Termination à The real end of the Pship, in which the

Pship ceases to exist.

CORPORATIONS & LLC’S
Definitions - A promoter remains personally liable for a pre-corp.
contract even if the corp. subsequently adopts the contract
BoD = Board of Directors (both the corp. and the promotor will be liable if adopted).
SH = Shareholder
RMBCA = Revised Model Business Corporation Act - A promoter will NOT be liable if:
a) there is a subsequent novation; OR
A. Formation of a Corporation b) the contract explicitly provides that the promoter
has no personal liability.
1. Date of Corporation Existence
2. Liability of Corporation
- Corp. existence begins on the date the Articles of
A corp. is not liable on a contract made by a promoter
Incorporation are properly filed with the Secretary of State,
UNLESS the corp. expressly or impliedly adopts the
unless a delayed effective date is specified.
contract post-incorporation.
- RMBCA does not allow an earlier effective date.
– Express adoption = BoD action
- De Jure Corporation = properly formed corp.
– Implied adoption = Corp. (1) knows or has reason
to know the material terms of the contract; AND (2)
2. Articles of Incorporation - Filed to form a corporation,
accepts some benefit of the contract.
and MUST contain:
(1) corporate name;
3. Defective Incorporation & Owner Liability - If corp.
(2) number of shares corp. is authorized to issue;
formation is defective, owners may be personally liable for
(3) address and name of initial registered agent; AND
contracts and obligations.
(4) name and address of each incorporator.
EXCEPTIONS:
– RMBCA: Prevents personal liability unless person (1)
3. Amending Articles of Incorporation – May be
purports to act as or on behalf of a corp., (2) knowing
amended by a majority vote of the directors AND
that no corp. was formed.
shareholders. The BoD has the authority to make
– De Facto Incorporation: Exists when entity (1) made
general minor amendments without SH approval.
good faith attempt to incorporate, (2) is eligible to
incorporate, AND (3) took action that it considered
4. Bylaws
itself a corp. Doctrine only prevents personal liability
- Rules and regulations adopted by BoD that govern the
of persons unaware that a corp. wasn’t properly
internal operations of a corp.
formed.
- The Articles of Incorporation control if there is a conflict
– Incorporation by Estoppel: A person/entity may be
with the Bylaws.
estopped from denying that a business is a corp.
when it treated the business as such.
5. Amending Bylaws
- May be amended or repealed by SH’s.
C. Personal Liability & Piercing the Corporate Veil
- May be amended or repealed by BoD UNLESS:
a) Articles of Incorporation exclusively reserve the 1. SH Personal Liability: Generally, SH’s are NOT
power to SH’s; OR personally liable for the liabilities and obligations of the
b) SH’s, in amending a bylaw, expressly provide BoD corp. But, courts may pierce the corp. veil to impose
cannot amend or reinstate a specific bylaw. liability.
- If a bylaw deals with a director nomination, the BoD
retains power to safeguard the voting process, BUT cannot 2. Piercing the Corporate Veil
repeal a shareholder approved bylaw. - Courts may disregard the corporate form, and hold an
individual shareholder, director, or officer personally
B. Pre-Incorporation Contract Liability liable for actions taken on behalf of the corp. when:
a) Corp. is acting as the alter ego of the shareholder
– SH utilizes the corp. for personal reasons;
1. Liability of Promoter
b) There is a failure to follow corporate
- A promoter acts on behalf of a corp. that has not yet
formalities;
been formed.
c) Corp. is inadequately capitalized at its inception;
- A promoter is personally liable when he:
OR
1) purports to act as or on behalf of a corp.; AND
d) To prevent fraud.
2) knows no corp. was formed.

- Courts are more likely to pierce for tort actions than contract - Under the RMBCA, SH’s do not enjoy preemptive rights
disputes. UNLESS explicitly granted in Articles of Incorporation.
- Passive investors are generally NOT liable, even if a court
pierces the veil against an active SH/Member. - Preemptive rights DO NOT apply to shares:
a) issued as compensation;
3. Piercing the Veil for LLC’s b) issued to satisfy conversion/option rights created
- Courts generally apply the same factors to pierce the veil to provide compensation;
of an LLC to hold members or managers liable, BUT the c) issued within 6 months of incorporation;
failure to follow formalities is not a ground to pierce the d) issued for consideration other than cash; OR
LLC veil. e) shares issued without general voting rights but
with preferential rights to distributions.
4. SH/Member Liability for Own Torts - SH’s of Common stock DO NOT have preemptive rights
Even if the court does not pierce the veil, a person is with respect to preferred shares, unless the shares are
ALWAYS liable for their own torts. convertible into common shares.
D. Corporate Finance 7. Options for the Purchase of Shares

A corp. may issue rights, options, warrants for the
1. Common & Preferred Shares purchase of shares or other securities.
- Common shares – Provide SH’s with voting rights.
- Preferred shares – Generally provide SH’s the right to 8. Dividends
be paid out from assets upon dissolution before SH’s with - Generally, SH’s do not have the right to compel the corp.
common shares. to provide a distribution, UNLESS such right is expressly
- If only one class of shares is authorized à all shares will granted in the Articles of incorporation.
have both the power to vote and the power to receive the - Once a dividend is declared, the SH has a legal right to
net assets upon dissolution. the distribution.
- If more than one class of shares à the classes must be - Distributions are declared at the discretion of BoD, and
described in the Articles of Incorporation. All shares protected under Business Judgment Rule
within a class must have same rights. - A court will only interfere and compel a distribution
upon showing: (a) funds were available; AND (b)
2. Outstanding Shares – The total number of shares bad faith or dishonest purpose.
issued by the corp. and held by the SH’s.
9. Restrictions on Share Transfers
3. Authorized Shares – The maximum number of shares The Articles of Incorporation, bylaws, and/or SH
the corp. may issue. Agreements may impose reasonable restrictions on the
transfer of shares (but it cannot be an undue restraint on
4. Shares Reacquired by Corp. (Treasury Shares) alienation).
- These shares are considered authorized, but are NOT
outstanding (because no SH owns them). E. Charitable Donations by a Corporation
- Reacquired shares are NOT allowed to be voted.
A corp. may make reasonable charitable donations, even if
5. Consideration in Exchange for Shares not expressly authorized to do so.
- Under the RMBCA, shares may be issued for almost
any type of consideration, including: money, tangible or F. Shareholders
intangible property, past performance of services, future
promises of service or payment of money/property. 1. Special Meetings – May be called by the BoD, persons
authorized under the Articles of Incorporation, OR
- The BoD determines the value of non-monetary shareholders holding at least 10% of all votes entitled to
consideration, and absent fraud or bad faith, their be cast at the meeting.
determination is conclusive. - Notice of a special meeting requires:
1) At least 10 days advance notice of the meeting
6. Preemptive Rights (but less than 60 days); AND
- Allows an existing SH to maintain her % of ownership by 2) A description of the meeting’s purpose
being offered the opportunity to purchase shares issued – If the meeting involves a fundamental change, ALL
for cash before outsiders are permitted to purchase. shareholders (whether or not entitled to vote) are entitled
to notice.

2. Quorum – Must be present for the SH’s to take action - If cumulative voting is authorized, a SH may cast all his
at a meeting, and requires a majority of the shares entitled votes for one director nominee rather than being limited to
to vote. a maximum number of votes for each nominee.
- Under cumulative voting, a director can be removed
3. Shareholder’s Right to Vote ONLY IF the number of votes for removal are greater than
- Only shareholders that are registered shareholders on those needed to elect him.
the record date are entitled to vote, even if a SH sells the
shares before the meeting. G. Officers
- Record date CANNOT be more than 70 days prior to the
meeting. 1. Authority of Officers
- BoD may elect individuals as Officers to manage the day-
4. Proxy Voting to-day business of the corp.
- Officers have authority to act consistently with their duties
Proxy – A proxy grants the proxy holder the ability to vote as outlined in the Bylaws or as provided by BoD.
shares as the proxy holder deems appropriate.
- Must be signed on either an: (a) appointment form; 2. Removal of Officers
OR (b) electronic transmission. Officers may be removed at any time with or without cause
- Only valid for 11 months. by:
a) The Board of Directors;
Proxy agreements are freely revocable by the b) An Officer who appointed such Officer (unless the
shareholder, even if the proxy states that it is irrevocable. bylaws or BoD provide otherwise); OR
Exception: NOT revocable if coupled with an interest c) Any other Officer if authorized by BoD or Bylaws.
or legal right.
H. Directors
5. SH’s Right to Inspect Books and Records
- Under the RMBCA, a SH has the right to inspect and
1. Quorum
copy the corp.’s accounting records, excerpts of BoD
- BoD’s can act only if a quorum is present at the time
meetings, and the record of shareholders if:
when a vote is taken.
1) made during regular business hours at the
- A majority of directors is necessary to make a quorum,
principal office;
UNLESS a higher or lower number is required by the
2) with five-days written notice;
Articles of Incorporation.
3) made in good faith and for a proper purpose;
4) describes the purpose with particularity; AND - If the Articles of Incorporation lowers the number,
it cannot be less than 1/3 of the directors.
5) the requested records are directly connected with
- The BoD may permit participation of a director by any
the purpose.
means of communication, BUT all directors must be able
to simultaneously hear each other during the meeting.
- A SH may inspect the following records without providing
a proper purpose:
2. Notice of BoD Meeting
i. Articles of Incorporation;
- Regular meetings may be held without notice.
ii. Bylaws;
- Special meetings require at least 2-days’ notice (of the
iii. BoD resolutions;
date, time, and place of the meeting)
iv. Minutes of SH meetings (for past 3 years);
- Waiver – A director may waive notice:
v. Name and business addresses of current directors
a) In a signed writing; OR
and officers; and
b) If the director attends the meeting (unless he
vi. Most recent annual report.
objects at the beginning of the meeting and does
not vote).
6. Shareholder Voting Agreements
- Under the RMBCA, a SH may sign an agreement
3. Board Action by Written Consent – The BoD may
providing how they will vote their shares.
take action without a meeting if: (1) all directors sign a
- A SH agreement is specifically enforceable, and a claim
consent describing the action; AND (2) deliver it to the
for breach of contract may be brought to enforce this right.
corp.
7. Cumulative Voting
- The Articles of Incorporation or Bylaws may provide for
cumulative voting to elect Directors.

4. Election of Directors A conflict occurs when a director/officer or a family
- Most states require a plurality vote (not a majority vote). member:
- Some states require a majority vote. a) is a party to the transaction;
b) has a beneficial interest in the transaction or is so
5. Removal of Directors closely linked to it that the director’s judgment may
- Under the RMBCA, SH’s may remove a director with or reasonable be affected; OR
without cause unless the Articles of Incorporation requires c) is involved with another entity that is conducting
cause. business with the corp. and that transaction would
- Under the Common Law, directors could only be normally be brought before the BoD.
removed for cause.
4. Restricting/Eliminating Fiduciary Duties
I. Duties and Liabilities of Directors and Officers - The Articles of Incorporation (or an Operating Agreement
for an LLC) may remove or limit a person’s duty of
1. Duty of Care & Business Judgment Rule loyalty to refrain from competing with the corp. Such
- Directors are fiduciaries of the corp., and as such owe a provisions are valid as long as not manifestly
duty of care. This means they must discharge their unreasonable.
duties:
1) in good faith; - Under the RMBCA, the following CANNOT be limited: (1)
2) with the care that a person in a like position would financial benefits improperly received; (2) intentional
reasonably believe appropriate under like infliction of harm to the corp. or SH’s; (3) unlawful
circumstances; AND distribution of a dividend; or (4) an intentional violation of
3) with the reasonable belief that they are acting in criminal law.
the best interests of the corp.
J. Direct and Derivative Actions
- Under the common law, the above was known as the
Business Judgment Rule. 1. Direct Suits
- May be brought when there is a breach of a duty owed to
- Directors must be reasonably informed on the decisions a shareholder of a corp. or member of an LLC.
they make. They can rely on the reasonable advice of - The injury CANNOT be solely the result of an injury
(qualified) professional advisors. suffered by the corp.
- If a director breaches the duty of care, he may be
personally liable to the corp. for any losses that result. 2. Derivative Suits – When a SH is suing to enforce the
corp.’s claim.
2. Duty of Loyalty
- Directors must act in the best interests of the corp., and The RMBCA requires the SH to:
without personal conflict. 1) Own the corp.’s stock at the time the claim arose
- Forbids directors from: (or became a SH by operation of law from such a
a) entering into conflicting interest transactions; SH);
b) usurping a corporate opportunity; 2) Be a SH through entry of judgment;
c) trading on inside information; OR 3) Fairly and adequately represent the corp.’s
d) competing with the corporation. interests; AND
4) Make a written demand to the corp. to take
3. Conflicting Interest Transactions – Is a breach of the suitable action.
duty of loyalty UNLESS: - A derivative suit CANNOT be commenced
a) approved by a majority of disinterested directors until 90-days after the demand, UNLESS
after full disclosure of all relevant material facts; the corp. rejects the demand or it will suffer
b) approved by majority of disinterested irreparable harm if forced to wait.
shareholders; OR
c) the transaction as a whole was fair to the corp. at For an LLC, all of the elements are the same, except:
the time it was entered into (the price must be 1) The action may be brought within a reasonable
comparable to an arm’s length transaction and time after the demand; and
negotiations must be fair). 2) The demand requirement may be waived if futile.
Any damages awarded are paid to the corp., but the SH

may recover reasonable costs of the litigation.

K. Fundamental Changes to Corporation L. Dissociation and Dissolution
1. Mergers & Share Exchanges 1. Judicial Dissolution

- BoD of both Corporations must first approve, then SH’s - A shareholder may petition the court if:
of both must approve with a majority vote. a) Deadlock of the directors + irreparable injury to
- SH approval is NOT required if: corp.;
1) Articles of Incorporation will not be changed; b) Directors act in a manner that is illegal,
2) Outstanding shares will not change; AND oppressive, or fraudulent (violating SH’s
3) Voting power of any shares issued as a result of reasonable expectation or preventing minority
the merger is 20% or less. shareholders from having equal rights and
- SH Approval is NOT required for a share exchange if the opportunities);
corp. is acquiring the other company. c) SH’s are deadlocked in voting power and have
failed to elect Directors for at least 2 consecutive
2. Short Form Merger – Occurs when a parent corp. annual meetings; OR
merges with its subsidiary, and the parent corp. owns at d) Corp. assets have been wasted or misapplied.
least 90% of the subsidiary’s outstanding shares.
- In such a case, only the BoD of the parent corp. 2. Election to Purchase Shares in Lieu of Dissolution
has to approve the merger. - A private corp. or its shareholders may elect to purchase
all shares owned by the SH petitioning for dissolution at
3. Obligations to Investors Regarding a Merger fair market value.
- A corp. or its agent’s CANNOT make misleading - This election is irrevocable once made.
statements concerning the merger.
- Misleading = (a) making a false statement of material M. Limited Liability Companies (LLC’s)
fact; OR (b) failing to state a material fact necessary to
ensure that other statements are not misleading. 1. Articles of Organization
An LLC is formed when:
4. Sale of All or Substantially All of the Corp.’s Assets 1) the Articles of Organization (Certificate of
- A majority vote of BoD is required to approve the sale. Formation) is filed with the Secretary of State;
- A majority vote of SH’s is only required if the sale is NOT AND
in the usual and regular course of business. 2) the LLC has at least one member.
5. Dissenter’s Appraisal Rights 2. Member-Managed vs. Manager-Managed

A dissenting SH is entitled to appraisal rights (to obtain - Under RULLCA, the LLC is presumed to be member-
payment of fair market value for his shares) if any of the managed.
following occur: - For the LLC to be manager-managed, the Operating
1) he has the right to vote on the merger plan; Agreement must state that the LLC will be manager-
2) he is a SH of the subsidiary in a short form managed.
merger; - A manager-managed LLC is run by an elected group of
3) his shares are being acquired in a share managers (similar to a BoD).
exchange;
4) he has the right to vote on the distribution of all or 3. Operating Agreement – Contains: (1) the relation
substantially all assets; and between the members and LLC; (2) the rights/duties of
5) if an amendment of the Articles of Incorporation managers; (3) activities and affairs of the LLC; and (4) any
materially and adversely affect the SH’s rights. means and conditions for amending the Operating
Agreement.
SH may force the corp. to purchase his shares if:
1) he gives notice to the corp. of his intent to assert 4. Authority of LLC Members
appraisal rights; - Under RULLCA, each member of an LLC can bind the
2) notice was given before the vote; LLC if the action is made in the ordinary course of
3) the fundamental change is effectuated; AND business UNLESS:
4) the SH did not vote in favor of the change. 1) the member lacked authority; AND
2) the other party had notice of lack of authority.
- BUT, appraisal rights are NOT available to - Managers in a manager-managed LLC have similar
SH’s of publicly traded companies. authority.

- Under RULLCA, acts outside the ordinary course of
business may be undertaken only with the consent of ALL
members.
5. Dissociation from an LLC

- Dissociation occurs when an LLC has notice of the
person’s express will to withdraw.
- A dissociating member loses the right to participate in the
LLC, BUT he still has the right to receive distributions.
- Under RULLCA, dissociation DOES NOT result in
dissolution of the LLC.

CIVIL PROCEDURE
A. Federal Subject Matter Jurisdiction (SMJ)
- A court my decline to exercise Supp. Jurisdiction
1. Federal Question Jurisdiction when a:
- Exists when the claim arises under (a) federal law, (b) US a) claim raises a novel or complex issue of
Constitution, OR (c) US treaty. State law;
- P must be enforcing a federal right. b) claim substantially predominates over the
- Federal question MUST be present on the face of a well other claims which court has original
pled complaint. jurisdiction;
- Courts do not have SMJ in cases primarily involving c) court dismissed all claims that had federal
domestic relations matters (marital, parent-child issues). SMJ; OR
d) in exceptional circumstances.
2. Diversity of Citizenship Jurisdiction
Requires BOTH: B. Removal
1) Complete diversity of citizenship, at the time
the action is commenced; AND Defendant may remove a case to Fed. Court (in the district
[No P can be from the same state as any D. where the state court case was originally filed) if:
Citizenship is determined by domicile: 1) Fed. Court has SMJ;
- Natural Person: (1) residence, and (2) 2) All defendants agree;
subjective intent to make the state their 3) Defendant is not a resident of the forum state;
permanent home. AND
- Corporation: The principal place of 4) Removal is sought within 30-days of service of the
business + any state where it is Summons or receiving the initial pleading.
incorporated.
- Unincorporated Association: Deemed to *A plaintiff CANNOT remove a case to Fed. Court.*
be a domiciliary of the state of every
partner/member/owner. C. Abstention Doctrines
- Executor/Personal Representative:
Citizenship of decedent or person being - Fed. Courts can abstain from hearing a case when it may
represented.] intrude upon the power of another court.
2) Amount in controversy exceeds $75,000 - A court may stay a case arising from ambiguous state
Based on damages alleged in good faith in the law to await the outcome of pending state court case.
Complaint, unless it is legally certain that the P
cannot recover the specified amount. Abstention Doctrines:
- Injunctive relief = the amount of the - Pullman Doctrine - discretion to abstain when case
benefit to P or cost of compliance for D. arises from unsettled areas of state law, and state
- May aggregate claims against one D, or court interpretation may remove the need to decide
against multiple Ds if they are jointly and the case on federal ground.
severally liable. - Younger Doctrine - may abstain from hearing
constitutional challenges to state action when it
3. Supplemental Jurisdiction – Allows a party to bring a would interfere with a state judicial proceeding.
state claim in Federal Court that does not meet the - Colorado River Doctrine - should abstain when
requirement of SMJ. parallel (substantially the same) state and federal
A Federal Court may exercise Supplemental litigations are pending.
Jurisdiction when such claim arises from a common - Burford Doctrine - abstaining is only appropriate if
nucleus of operative fact as the other claims the federal adjudication would interfere with a state’s
court has SMJ over (the claims must arise out of the administration of a complex regulatory scheme.
same transaction or occurrence).
- Supp. Jurisdiction CANNOT be used to overcome
a lack of diversity.
- It cannot be asserted if it would violate complete
diversity.

D. Personal Jurisdiction (PJ) 2. Service upon an Individual
May be served: (a) personally; (b) via someone of suitable
1. Personal Jurisdiction Requirements: Fed. Court age and discretion at the individual’s current dwelling or
must have PJ over D for its judgment to be binding. usual place of abode; (c) via an agent (by appointment or
by law); OR (d) in accordance with the state law of the
To obtain PJ, the following must be satisfied: forum state/where service is made.
1) The State PJ grounds where the Fed. Court is
located; AND 3. Service upon a Corporation, Partnership, or
2) US Constitutional limitations. Association
May be served: (a) in accordance with state law of the
Traditional Bases of Jurisdiction: forum state or where service is made; OR (b) to an officer,
a) Domicile; manager, or general agent.
b) Presence in state when served;
c) Consent; OR 4. Service upon a Foreign Defendant
d) Waiver (appearing in the action without objecting). - May be served via any manner NOT prohibited by
international agreement.
Long Arm Jurisdiction:
1) State must have a long-arm statute; AND F. Venue
2) Constitutional Due Process Requirements: D has
sufficient minimum contacts so as not to offend 1. Proper Venue
traditional notion of fair play and substantial Venue is Proper in any district where:
justice. a) any defendant resides (if all defendants are
i) Minimum Contacts (contacts + relatedness) – residents of the forum state);
Either: b) where a substantial portion of the claim
a) General Jurisdiction – contacts so occurred/property is located; OR
substantial and of such nature that D is c) if neither (a) or (b), where any defendant is subject
essentially at home; OR to the court’s PJ.
i. Individuals = domicile in state
ii. Corporations = where Corp. is “at 2. Transfer of Venue:
home” (usually where - If venue was proper when the case was filed, the court
incorporated or headquartered). MAY transfer it if:
b) Specific Jurisdiction – connection 1) Needed for the convenience of witnesses or
between forum state and underlying interests of justice; AND
controversy AND lawsuit must 2) The case could have initially been brought in
relate/arise from D’s contact with state. receiving court (court has PJ and SMJ).
i. Regularly occurring product
sales in a state DOES NOT - If venue was improper when the case was filed, the court
justify jurisdiction of a claim MUST either:
unrelated to those sales. a) Dismiss the case; OR
ii) Fair Play & Substantial Justice (fairness) – b) Transfer case to a proper court if the interests of
Must be fair and reasonable for D to be sued justice require it.
in forum state.
- Courts will enforce a forum-selection clause UNLESS
E. Service of Process and Notice special factors are present (unusual hardship, inequality of
bargaining power, etc.).
1. Service of Process and Notice
- Summons and copy of the Complaint must be served G. Law Applied by Federal Courts
within 90-days after filed.
- The method of service must be consistent with Due 1. Erie Doctrine
Process à reasonably calculated to make the parties - Applies when a federal case is brought under diversity of
aware of the action and give them an opportunity to object. citizenship jurisdiction.
- Federal courts will apply federal procedural law, BUT
must apply the substantive law of the forum state in which
it sits.

2. Substance vs. Procedure - If these defenses are not included in the D’s first
- Procedural laws = civil procedure rules, statute of response (answer/ pre-answer motion), they are deemed
limitations (except in limited circumstances), burden of waived: (1) lack of PJ; (2) improper venue; (3) insufficient
proof, and rebuttable presumptions. process; and (4) insufficient service of process.
- Substantive laws = choice of law rules, statute of frauds, - BUT, courts have allowed adding waivable
irrebuttable presumptions, statute of limitations that defenses to previous MTD when: (1) promptly
condition a substantive right or have a borrowing statute, made; AND (2) its prior to hearing on original
and damages. motion.
H. Preliminary Injunctions & Temporary Restraining 2. Amendments to Pleadings

Orders - Allowed once as a right within 21-days after service of:
a) original pleading; OR
1. Preliminary Injunction – Maintains the status quo b) a responsive pleading or pre-answer motion to the
pending the outcome of an action, and requires: original pleading.
1) likelihood of immediate and irreparable harm if
injunction is not issued; - In all other cases, and amendment is allowed
2) balance the possible harm to P against D; a) with opposing party’s written consent; OR
3) likelihood of P’s success on the merits; AND b) with leave of the court when justice so requires.
4) injunction is in the public interest.
3. Relation Back Doctrine – When complaint is amended.
- If granted, P must post a bond (the bond is used to - New Claim à relates back to the date of the original
reimburse the D for injury caused by injunction if D is filing so long as it arises out of the same transaction or
successful). occurrence as the original complaint allegations.
- New Defendant à relates back so long as:
2. Temporary Restraining Order (TRO) 1) same transaction and occurrence;
- Is an emergency remedy used to maintain the status quo 2) new party received notice of the original action
pending the outcome of a preliminary injunction within 90 days of filing the original Complaint;
application. 3) D knew they should have been named as a party;
AND
- To be issued, a movant must allege immediate and 4) the original claim was timely filed.
irreparable harm, and court will analyze the same factors
as a preliminary injunction. 4. Counterclaims – a claim against an opposing party.
- Permissive counterclaim à Counterclaims that are not
3. Ex Parte TRO compulsory.
– P must certify in writing any efforts made to give notice - Compulsory counterclaim à MUST be stated in party’s
to the adverse party and/or why notice should not be pleading or are deemed waived.
required. - Is a claim that: (1) does not require adding
another party out of court’s jurisdiction; AND (2)
- The adverse party may move to dissolve or modify the arises out of the same transaction or occurrence.
TRO on 2-days’ notice.
Same Transaction or Occurrence Factors: Courts
- Automatically expires after 14 days, UNLESS the court analyze whether:
extends it for good cause or the parties consent. 1) Issues of fact and law are largely the same;
2) Res judicata would bar a subsequent suit;
I. Pleadings 3) Substantially the same evidence supports or
refutes; AND
1. Affirmative Defenses 4) There is any logical relation between the claim and
- A party must set forth all affirmative defenses to the claim counterclaim.
alleged.
5. Cross-Claims
- A pleading must be amended if a party fails to assert a - Pleading may state a claim against co-party (co-
defense. defendant) as a cross claim, BUT only if it arises out of the
same transaction or occurrence as the original action.

J. Joinder of Parties and Claims - If more than 14-days after serving its original answer -
leave of court is required.
1. Permissive Joinder of Parties
May be joined if: 5. Class Actions
1) party asserts a right to joint and several relief or Requirements: A person is allowed to sue on behalf of a
the claim arises out of same transaction or class when there is:
occurrence; 1) Numerosity - so numerus that joinder is
2) common question of law or fact exists; AND impracticable;
3) SMJ is present for each claim. 2) Commonality - questions of law or fact common
to the class;
2. Required Joinder of Parties 3) Typicality - claim or defense of representative
A Party MUST be joined if: parties are typical; AND
1) Party is necessary; AND 4) Adequacy of representation - representative
2) Joinder is feasible. parties fairly and adequately protect the interest of
the class.
A party is necessary if:
a) The court cannot grant complete relief without the Class Certification: If the above are met, the class will be
party; certified if:
b) The party claims an interest in the action that a) separate actions would create risk of inconsistent
would be impaired or impeded; OR adjudications or harm the interests of other
c) Party’s absence creates a substantial risk of members;
double liability or inconsistent obligations. b) grounds for relief are appropriate to the class; OR
c) question of law or fact are predominant + class
Joinder is feasible if: action is the best method.
1) Joinder will not remove SMJ; AND
2) Court has PJ over the party. K. Discovery
If NOT feasible, the court will consider factors to decide 1. Discoverable Information – A party may obtain all
whether to continue or dismiss the action: (i) absence non-privileged info:
might prejudice any party; (ii) whether prejudice can be 1) relevant to any party’s claim or defense; AND
lessened or avoided; (iii) can an adequate judgment be 2) proportional to the needs of the case.
rendered; and (iv) if plaintiff would have adequate remedy - The info need not be admissible into evidence to be
if case if dismissed. discoverable.
3. Intervention as of Right 2. Depositions

Upon timely motion, the court must permit a non-party to - Up to 10 depositions of any person/party are allowed so
intervene in an action if the party: long as:
1) claims an interest relating to the subject matter of - It is limited to one day of no more than 7 hours.
the action; - Proper notice - reasonable notice in advance.
2) is not adequately protected by existing parties; - No subpoena is required to depose a party to the action.
AND
3) disposal of claim may harm the non-party’s 3. Rule 26(a) Initial Disclosures
interest. Without request, each party must provide:
- If intervention as of right is not present, the court may still 1) contact info of individuals likely to have
allow permissive intervention upon a timely motion. discoverable info;
2) copy or description of all docs, ESI, tangible things
4. Impleader (Third Party Actions) the party may use to support its claims or
- Defendant (as 3rd party plaintiff) may serve a Summons defenses;
and Complaint upon a 3rd party who may be liable for all 3) computation of each category of damages; AND
or part of the P’s injuries. 4) any insurance agreement that may be liable to
- Only allowed if: (1) 3rd party may be liable to D, (2) for satisfy judgment.
all/part of the judgment in the action. Claims merely - If a party fails to provide the above, that party is NOT
arising out of the same transaction or occurrence are allowed to use that witness/info on a motion, hearing, or
insufficient unless an indemnification/contribution claim
exists.

trial UNLESS the failure was substantially justified or 2. Motion for Summary Judgment
harmless. Motion will be granted when:
4. Attorney Work Product Doctrine 1) It considered the evidence in the light most
Protects all materials prepared by an attorney (or his favorable to the non-moving party;
agent) in anticipation of or during litigation UNLESS 2) There is no triable issue of material fact; AND
1) Otherwise unavailable; AND 3) Movant is entitled to judgment as a matter of law.
2) Substantial need and it cannot be obtained without
undue hardship. - The parties must cite to particular evidence.
- A party must disclose the existence of the material in - The motion may be sought on the entire case or for
sufficient detail to enable other parties to asses claim of certain issues (partial summary judgment).
privilege.
3. Motion for Judgment as a Matter of Law (JMOL)
L. Pretrial Conference and Order
- May be brought at any time before the case is submitted
1. Pretrial Conference – The court may order attorneys to the jury.
and pro-se parties to appear for a pre-trial conference to
control the management of the case. - Motion will be granted if:
- Attendance is MANDATORY. 1) The non-moving party has been fully heard on the
issue during jury trial; AND
2. Modification of a Pretrial Order 2) Court finds that a reasonable jury would not have
- Court will only modify after the final pretrial conference to a legally sufficient basis to rule in favor of the non-
prevent manifest injustice. moving party on that issue.
- A party may renew its JMOL motion only if it moved
before the case was submitted to the jury.
M. Motions
- A renewed motion for JMOL must be filed within 28 days
1. Motion to Dismiss of the entry of judgment.
Standard: Requires the court to: (1) consider the facts in 4. Motion for a New Trial - Must be filed no later than 28
the light most favorable to the non-moving party; and (2)
days after the entry of judgment.
determine if there is any basis upon which relief can be
Grounds:
granted for non-moving party. a) Error at trial that makes judgement unfair;
- The court DOES NOT evaluate the merits of the b) New evidence surfaced that could not obtained
case. with due diligence for the original trial;
c) Prejudicial misconduct;
Motion to dismiss grounds: d) Judgment was against weight of evidence; OR
1. lack of SMJ; e) Verdict was excessive or inadequate.
2. lack of PJ;
3. improper venue;
N. Sanctions
4. insufficient process;
5. insufficient service of process;
6. failure to state a claim upon which relief can be 1. Failure to Preserve Electronically Stored Info (ESI)
granted; The court may sanction a party for failure to preserve ESI
7. failure to join a necessary party. only if:
- Grounds (2)-(5) are waived if not raised in the first 1) ESI should have been preserved;
responsive pleading or pre-answer motion to dismiss. 2) The party failed to take reasonable steps to
- Ground (1) may be made at any time. preserve; AND
3) ESI cannot be replaced/restored though additional
After Defendant Answers – The motion is called a “Motion discovery.
for Judgment on the Pleadings.”
If the above test is satisfied, the court may:
If matters outside pleadings are presented – Court may a) Order measures to cure any prejudice; OR
treat the motion as a motion for summary judgment. b) If failure to preserve was intentional,

i. order an adverse inference instruction to the - May be invoked when:
jury to presume or infer that the lost info was 1) Parties are identical or in privity;
unfavorable; 2) Prior judgment was rendered by a court of
ii. dismiss the action; or competent jurisdiction;
iii. enter a default judgment. 3) Final Judgment on the merits; AND
4) Same claim involved in both actions (claim arises
2. Rule 11 Sanctions out of the same transaction or occurrence).
- All papers must be signed by an attorney, and certify
that: - Privity exists when the non-party has a legally recognized
1) not being presented for any improper purpose; relationship with the original party, and would be bound by
2) legal contentions are warranted and non-frivolous; a judgment against the original party.
3) factual contentions have evidentiary support or will
after discovery; AND 2. Collateral Estoppel (Issue Preclusion)
4) denials of factual contentions are warranted or – Precludes a party from attempting to retry an issue if
reasonably based on lack of information. there has been a final judgment on the merits by a court of
competent jurisdiction.
- The court may issue sanctions (by motion or on its own)
for failure to comply with Rule 11. - May be invoked when:
1) Valid and final judgment was issued in the prior
- Nature of sanctions imposed are within the discretion of action;
the court, and can be: (a) non-monetary directives; (b) pay 2) Issue is identical to the issue decided in the prior
penalty; or (c) pay reasonable attorney’s fees/expenses action;
resulting from violation. 3) Issue was actually and conclusively decided in the
prior action; AND
- A party CANNOT file Rule 11 motion with the court 4) The party against whom enforcement is sought
without first: (1) serving motion on offending party; AND (2) had a similar motive and opportunity to defend the
giving opponent 21 days to withdraw or correct claim in the prior action.
paper/pleading.
- A non-party to a prior action MAY assert issue
3. Pretrial Conference Sanctions preclusion.
- May be issued if a party: (a) fails to appear; (b) is
substantially unprepared; (c) does not participate in good Q. Appeals
faith; OR (d) fails to obey a scheduling order or pretrial
order. 1. Final Judgment Rule
- Sanctions may include: (a) a prohibition - A federal appellate court can only hear an appeal from a
supporting/opposing designated claims or defenses; (b) final judgment on the merits (unless an exception
striking the pleading; (c) dismissing the action; OR (d) a applies).
default judgment.
- A final judgment:
O. Verdicts and Judgments 1) Resolves the claims in the action on the merits;
AND
1. Preclusive Effect of a Default Judgment 2) Leaves nothing for the court to do but execute the
- A default judgment will have a preclusive effect if the judgment.
court had SMJ and PJ.
- A default judgment bars a party from asserting defenses 2. Collateral Order Doctrine
or compulsory counterclaims that could have been raised Allows party to appeal interlocutory rulings immediately if
in the first action. the interlocutory order:
1) Conclusively determines the disputed question;
P. Res Judicata & Collateral Estoppel 2) Resolves an important issue that is separate from
the merits of the action; AND
1. Res Judicata (Claim Preclusion) 3) Issues would effectively be unreviewable on
– Bars re-litigating any claim in a case where there has appeal from a final judgment.
already been a final judgment on the merits by a court of
competent jurisdiction.

3. Pendant Appellate Jurisdiction
A party may seek to have a non-final order reviewed along
with another appealable order currently pending before the
appellate court when:
a) non-appealable and appealable decisions are
inextricably intertwined; OR
b) review of non-appealable order is important to the
review of the appealable order.
4. Certified Appeal Exception

An immediate appeal is allowed when:
1) A federal district court judge certifies certain
grounds for immediate appeal; AND
2) The Court of Appeals agrees to permit the appeal.
5. Rule 54(b) Exception

An immediate appeal is allowed when:
1) Action has multiple parties or multiple claims;
2) Court directs final judgment for some of the claims
or parties; AND
3) Court expressly determines that there is no just
reason for delay of an appeal.

CONFLICT OF LAWS
A. Choice of Law Theories
2. Contracts with a Choice of Law Provision
1. Traditional Vested Rights Approach - Parties are free to choose for matters of contract
Under this approach, apply the law of the state where construction.
transaction or event occurred. - For contract validity, the parties may only choose
applicable law if: (1) state has some connection; (2)
2. Most Significant Relationship Approach (Rest. 2nd) contract was not entered into under fraud, duress, or
Under this approach, apply the law of the state having the mistake; AND (3) choice of law is not contrary to a
most significant relationship to the transaction and the substantial policy interest of another state that has more of
parties. a significant interest.
3. Interest Analysis Approach 3. Contracts without a Choice of Law Provision

- Under this approach, the court weighs the interests of the Traditional Vested Rights Approach à apply law of the
states involved. state where contract was formed or is to be performed.
- The state with the greater interest will have its law
applied. Most Significant Relationship Approach à apply law of
the state that has the most significant relationship.
3-Step Process to Determine the Greater Interest: - Court must consider the place of contracting,
(1) If one state has an interest to apply its policy, and place of negotiation/performance, location of the
the other state doesn’t, court should apply the law subject matter of the contract, and
of the interested state. domicile/residence/nationality of the parties.
(2) If there is an apparent conflict between the
interests of 2 states, the court should look for a Governmental Interest Analysis Approach à apply law
more moderate/restrained interpretation to avoid of the state with the greater interest (see above).
the conflict.
(3) If there is still a conflict, the law of the forum state 4. Contractual Forum-Selection Clause
applies. Courts will enforce a contractual forum-selection clause
to transfer venue UNLESS special factors are present (i.e.
B. Application in Specific Areas significant/unusual hardships or inequality of bargaining
power).
1. Torts
5. Premarital Agreements
Traditional Vested Rights Approach à apply the state
- Apply the law:
law where wrong/injury occurred.
a) Where the agreement was executed; OR
b) That has most significant relationship to
Most Significant Relationship Approach à apply the
transaction and the parties.
state law where that has most significant relationship to
occurrence and the parties.
- Most states use the Most Significant Relationship
- Courts must consider where the injury occurred,
Approach, where courts will analyze:
conduct causing injury occurred,
i) where parties were married;
domicile/residence of the parties, and where the
ii) residence while married;
relationship of the parties is centered.
iii) where parties are currently living;
- If unclear = apply local law. iv) where assets are located; and
v) where children were born.
Governmental Interest Analysis Approach à apply law
of the state with the greater interest (see above).

6. Real Property - State courts are required to give full faith and credit to
Apply the state law where real property at issue is located judicial proceedings of every US state.
(the situs rule) for cases involving the title or sale of real - State courts are required to give a federal judgment the
property. same force and effect as it would be given under the
- Under Rest. 2nd Approach, it is presumed that preclusion rules of the state the federal court sits.
situs state has the most significant relationship. - Federal courts are required to give state court judgments
- If the land is merely incidental to a contract (i.e. the same preclusive effect as state courts give each other.
brokerage contract, mortgage agreement), apply - Doctrine of comity – A court may (but is not required to)
traditional choice of law rules. give full faith and credit to judgments from foreign
countries.
7. Inheritance of Real & Personal Property
Real property à apply state law of where property is 2. Family Law Judgments
located (the situs rule). - Ex parte divorce (only one spouse is before the court)
Personal Property à apply state law of decedent’s may be maintained without personal jurisdiction over the
domicile state. absentee spouse, if the plaintiff spouse is a domiciliary of
the state where the court sits.
C. Law Applied by Federal Courts - A divorce (ex parte or not) validly granted in another state
is entitled to full faith and credit in all other states.
1. Erie Doctrine - In a matrimonial action involving economic or child
- Applies when a federal case is brought under diversity of custody/support issue, the court MUST have personal
citizenship jurisdiction. jurisdiction over the defendant-spouse.
- Federal courts will apply federal procedural law, BUT
must apply the substantive law of the forum state in which 3. Ceremonial & Common Law Marriage
it sits. - The validity of a marriage is determined by the law of the
state with the most significant relationship to the spouses.
2. Substance vs. Procedure - A marriage that is valid where formed is valid
- Procedural laws = civil procedure rules, statute of everywhere, UNLESS it violates the strong public policy of
limitations (except in limited circumstances), burden of another state.
proof, and rebuttable presumptions. - Most states will honor a common law marriage validly
- Substantive laws = choice of law rules, statute of frauds, established in another state.
irrebuttable presumptions, statute of limitations that
condition a substantive right or have a borrowing statute,
and damages.
D. Law Applied by State Courts
1. What Law is Applied

- A state court will apply the law of the forum state for
procedural issues.
- For substantive issues, the choice of law rules of the
forum state determines which state’s law is applied.
(See above for what constitutes substantive law vs.
procedural law.)
E. Recognition & Enforcement of Foreign or Sister-

State Judgments
1. Full Faith and Credit

- A judgment is entitled to full faith a credit when:
1) Court had jurisdiction (PJ + SMJ);
2) Case was decided on the merits; AND
3) Judgment was final.

CONSTITUTIONAL LAW
A. Justiciability C. The Powers of Congress
1. Standing 1. Commerce Clause

Exists when: Congress can regulate:
1) P personally suffered an injury in fact (injured or 1) Channels of interstate commerce (highways,
injury is imminent – for injunctive/declaratory relief phone lines)
P must show likelihood of future harm); 2) People and instrumentalities of interstate
2) There is causation; AND commerce (cars, airplanes, pilots);
3) The injury is redressable by court order. 3) Economic/commercial activity that has a
substantial effect on interstate commerce.
Third-Party Standing – (a) close relationship, (b) difficult
or unlikely for the 3rd party to assert their rights on their - Federal regulations regarding intrastate commerce will be
own, OR (c) 3rd party is an organization. upheld when (1) there is a rational basis, (2) to conclude
the cumulative impact (aggregation), (3) has substantial
Organization Standing – (1) related to an issue germane effect on interstate commerce.
to the organization’s purpose; (2) members would have - Aggregation/substantial effect CANNOT be used when
standing to sue; AND (3) member’s participation is not activity is not commercial/economic in nature.
necessary.
2. Negative Commerce Clause
2. Real Case or Controversy – Courts cannot give - A state MAY regulate commerce so long as Congress
advisory opinions or address hypothetical disputes. has NOT enacted laws on the subject matter.
- If enacted, any state/local law would be pre-empted.
Ripeness – whether the case is ready to be litigated.
Court may grant pre-enforcement review after considering - States CANNOT pass laws that:
hardship of no review and fitness of the record. a) discriminate against out-of-state commerce; OR
b) place an undue burden on interstate commerce.
Mootness – dispute has ended or was resolved before
review. Discriminatory Regulations – Laws that are facially
Exceptions: (1) case is capable repetition but evades discriminatory or have a discriminatory impact are
review; (2) voluntary cessation, but it can resume any unconstitutional UNLESS:
time; and (3) class actions, where at least one member a) The burden is narrowly tailored to achieve a
has ongoing injury. legitimate, non-protectionist state objective and no
less-discriminatory alternatives available; OR
B. Constitutional Limits on Federal Court b) The state is a market participant rather than a
Jurisdiction regulator of economic activity.
State Sovereign Immunity (11th Amendment) Unduly Burdensome Regulations – laws that place a
11th Amend. prohibits a party from suing a state in Fed. burden on interstate commerce.
Court UNLESS: Are unconstitutional when (1) the burden on interstate
a) State explicitly consents to waive protection; commerce, (2) is excessive to the putative benefit to
b) Suit pertains to federal laws adopted under state.
Section 5 of 14th Amend.;
c) Suit seeks only injunctive relief against a state 3. Power to Enforce the 13th, 14th, 15th Amendments
official; OR Congress has the power to enforce:
d) Suit seeks money damages from a state official. - 13th Amend. (abolish of slavery).
- 14th Amend. (privileges and immunities, due
- The 11th Amend. does not apply to local governments. process, equal protection, apportionment of
representatives).
- 15th Amend. (right to vote cannot be denied
because of race).
- BUT, Congress can only prohibit behavior that is likely to
involve a constitutional violation.

- Congress cannot define constitutional rights or change E. The Federal System
substantive law.
- There must be congruence and proportionality between 1. Preemption – Under the Supremacy Clause of US
injury to be prevented and legislative means adopted. Constitution, federal law will always trump conflicting state
law.
4. Taxing Power – Congress has the power to lay and - Express Preemption – law specifically states that
collect taxes, duties, imposts, and excises. federal law is exclusive.
- Duties, imposts, and excises must be geographically - Implied Preemption – (a) direct conflict with state
uniform throughout the U.S. law, (b) field preemption (law itself or legislative
- Under 16th Amend., Congress has power to collect taxes history), OR (c) state law interferes substantially
on income from any source. with the objective of the federal law.
5. Spending Power – Congress has the power to spend 2. Exclusive State Power (10th Amendment)
for the common defense and general welfare. - All powers not granted to the Fed Govt. are reserved to
- May attach restrictions or conditions on States receiving the states.
federal funds, but must satisfy 5 restrictions: - Congress cannot compel a State Govt. to implement
1) Spending must be for general welfare; legislation.
2) Condition must be imposed unambiguously; - BUT, Congress may induce state Govt. action by
3) Condition must be related to federal interest in attaching restrictions and conditions on federal funding
national projects or programs; pursuant to its spending power (for general welfare).
4) Condition cannot induce unconstitutional activity;
AND F. Incorporation Doctrine
5) Condition cannot be so coercive as to turn
pressure into compulsion.
- Most Amendments are applicable to the states through
6. Delegation of Powers – May delegate legislative incorporation through the 14th Due Process Clause.
powers, so long as delegable under the constitution and Exceptions:
Congress provides reasonably intelligible standards to - 3rd Amend. (freedom from quartering soldiers)
guide delegation. - 5th Amend. (indictment by a grand jury)
- 7th Amend. (jury trial in civil)
- 8th Amend. (excessive fines)
D. Powers of the President
- 14th Amend. (Equal protection) is incorporated into the
1. Domestic Powers: 5th Amend. Due Process Clause, making it applicable to
1) Execute the law; the Fed Govt.
2) Appoint officers (with senate advice and consent);
3) Remove cabinet level appointees (without cause); G. Government Action (“State Action”)
4) Remove independent regulatory agency
appointees (without cause unless Congress
passes law requiring good cause); - Generally, the conduct of private actors is NOT protected
5) Pardon federal crimes; and by US Constitution.
6) Commander in chief of military.
- Courts will find govt. action of a private actor when:
2. Treaty and Foreign Affairs Powers a) It is a traditional public function; OR
- Shares treaty powers with Congress. Treaties may be b) Significant govt. involvement exists to authorize,
negotiated by the President, but must be ratified by the encourage, or facilitate unconstitutional conduct.
Senate.
- Power to enter into Executive Agreements (agreements H. Due Process (DP) - 14th/5th Amendments
between President and head of a foreign country).
- Power to control and deploy troops in foreign countries. No person shall be denied life, liberty (freedom), or
property (entitlement that is not fulfilled) without due
process of law.
1. Procedural Due Process - The process required when

Govt. deprives of such rights.

- To determine the procedure required, the court balances J. Takings (5th Amendment)
the Matthews v. Eldridge factors:
1) Importance of private interest; 1. Takings
2) Risk of error under current procedure and the Govt. may take private property for public use if it provides
value of additional procedures; just compensation.
3) State interests and the burden that arises from - Deemed public use so long as there is a
additional safeguards. reasonable belief that it will benefit the public.
- Just compensation = fair market value at time of
2. Substantive Due Process taking.
Fundamental Rights Test: When regulating Possessory (per se) taking – Govt. physically occupies
fundamental rights, must satisfy strict scrutiny à Govt. the property (even if just a small portion).
must show law is necessary to serve a compelling
governmental interest. Regulatory taking – economically unviable due to a
regulation. Courts determine whether regulatory taking
Fundamental Rights = right to vote, interstate occurs by analyzing:
travel, and privacy (marry, procreate, use - Penn Central factors: (1) economic impact of
contraceptives, raise one’s child, keep family regulation on claimant; (2) extent of interference
together, maintain custody over children). with investment-backed expectation; and (3)
character of regulation.
Non-Fundamental Rights Test: When regulating
activities that do constitute fundamental right, must meet
rational basis test – plaintiff must show the law is not 2. Conditions on Approval of Permits
rationally related to a legitimate Govt. interest. Not a taking if:
1) Essential nexus between state interest and permit
I. Equal Protection (EP) - 14th Amendment condition; AND
2) Govt. makes individualized determination that the
1. Equal Protection Analysis condition is roughly proportional to advancing the
- EP prohibits Govt. from denying equal protection of the state interest.
laws.
- Discriminatory classification = (a) law is discriminatory K. Privileges and Immunity Clause
on its face; (b) law is facially neutral, but is applied in a
discriminatory manner; OR (c) a discriminatory motive P&I Clause (Art. IV, Sec. 2) - States cannot intentionally
exists. discriminate against non-residents concerning: (a) civil
- When laws classify people into groups, apply test based liberties; OR (b) important economic activities.
on type of class:
- Strict Scrutiny – Suspect class (race, nationality, - Regulations will be upheld if the state is justified:
alienage) or infringes on fundamental right – 1) substantial reason for the difference; AND
o Govt. must show the classification is 2) law has a substantial relationship to the reason.
necessary to serve a compelling
government interest. - P&I Clause does not protect aliens/corporations.
- Intermediate Scrutiny – Quasi-suspect (gender,
non-marital child, undocumented alien). L. First Amendment
o Govt. must show the classification is
substantially related to an important
1. Protections Provided
governmental interest.
- Protects the freedom of:
- Rational Basis – All other classes.
o Plaintiff must show the classification is not § Speech/expressive activities;
rationally related to legitimate § Exercise of religion;
governmental interest (any conceivable § Press;
interest ok). § Peaceably assemble; and
§ Right to petition.
2. Remedying Past Discrimination – This is allowed if - Congress shall make no law concerning the
the class actually suffered past discrimination. establishment of religion.

2. Free Speech: Vague & Overbroad Laws - Does not protect from liability for violating general
Both are unconstitutional. applicable laws.
- Unduly vague à does not put the public on
reasonable notice as to what is prohibited. 8. Commercial Speech – given fewer protections.
- Overbroad à regulates more speech than is
constitutionally permitted. Govt. may regulate truthful, non-misleading commercial
speech if: (1) directly advances a substantial
3. Free Speech: Prior Restraint governmental interest; AND (2) no more extensive than a
- Attempt to prohibit speech before it happens through a necessary to serve that interest.
court order or licensing requirement.
- Prior restraints on speech are generally disfavored and False or misleading commercial speech = not
unconstitutional, except in limited circumstances (where protected.
national security is at stake).
- Court orders preventing speech must satisfy strict 9. Symbolic Speech – May be regulated if: (1) govt. has
scrutiny. important purpose, (2) independent of the suppression of
- Procedural safeguards for licensing are permitted if: (1) speech, AND (3) restriction is no greater than necessary.
govt. has important reason; (2) specific, articulated
standards to remove discretion; (3) procedural safeguards 10. Fighting Words and True Threats – not protected
are in place, including prompt final judicial decision when a Fighting words are words which by their very utterance
license is denied. 1) inflict injury; OR
2) tend to incite an immediate breach of the peace.
4. Free Speech: Content-Based Restrictions – A subject
matter or viewpoint restriction is subject to strict scrutiny. 11. Obscenity – not protected.
Material is obscene if:
5. Free Speech: Content-Neutral Restrictions 1) appeals to prurient interest;
Time, place, and manner restrictions are allowed if: 2) patently offensive; AND
1) Narrowly tailored to achieve a significant 3) lacks any redeeming artistic, literary or scientific
government interest; AND value.
2) Leaves open alternative channels of
communication. 12. Freedom of Association – a fundamental right.
Govt. may punish a person’s membership if:
6. Public Forums 1) the group is actively engaged in illegal activities;
2) the member knows of the group’s illegal activities;
Public Forum – Traditionally available to the public for AND
speech. 3) member has specific intent of furthering such
- May regulate time, place, manner of content- activities.
neutral speech.
- If content-based restriction, must satisfy strict 13. Establishment Clause
scrutiny. - Any laws that discriminate against a religion are subject
to strict scrutiny.
Designated/Limited Public Forum – Not traditionally - Laws do not discriminate if:
made available to public, but Govt. chose to make 1) has a secular purpose;
available. Treated the same as public forums. 2) it’s primary effect neither advances nor inhibits
religion; AND
Non-Public Forum – Traditionally limited. Government 3) Does not excessively entangle govt. with religion.
may regulate speech if: (1) reasonable, AND (2) viewpoint
neutral. 14. Free Exercise Clause
- Laws that are designed to interfere with religion are
Private Property – No right to access another’s private subject to strict scrutiny.
property. - Laws of general applicability DO NOT offend the Free
Exercise Clause.
7. Freedom of the Press
– Protects press from liability when publishing (1) truthful
private facts, (2) regarding a matter of public concern, (3)
where information was legally obtained.

CONTRACTS
A. Formation and Enforceability of Contracts o Unilateral Contracts – only makes offer
irrevocable (acceptance only when
1. UCC vs. Common Law: completed).
- Rejection – manifestation of intent not to accept
UCC Art. 2: Applies to sales of goods contracts – goods an offer.
are all things movable at the time of identification. o Terminates the offer when communicated.
o Cannot accept an offer after it is rejected.
Common Law (CL): Applies to all other contracts. - Counteroffers – both a rejection and new offer.
- Implied-in-fact contracts – created by conduct if
Mixed contracts: Predominant purpose of the contract intentional and each party knows (has reason to
determines which law governs. know) the other party will interpret the conduct as
an agreement.
2. Requirement to Form a Valid Contract - Mailbox Rule
(1) mutual assent (offer and acceptance), (2) o Acceptance sent by mail is deemed to be
consideration, AND (3) no defenses to formation. accepted once placed in the mail (does
not apply to option deadline).
3. Offer – A manifestation of intent to enter into contract, o Revocation sent by mail is deemed
with definite and specific terms, communicated to an effective when received by the offeree.
identified offeree.
5. Mirror Image Rule & Exceptions
Termination – offers can be terminated before
acceptance by: (a) rejection or counter-offer; (b) lapse of Mirror Image Rule (CL) – Acceptance must exactly mirror
time; (c) revocation; OR (d) death/incapacity. the offer, any variations constitute a counter-offer.
Revocation – offer may be revoked at any time before UCC Exception – Acceptance does not have to mirror the
acceptance through unambiguous words or conduct offer
indicating unwillingness or inability to contract.
- Indirect Revocation = when (1) offeror takes - Additional terms are included only if,
definite action inconsistent with entering into a 1) Both parties are merchants;
proposed contract; AND (2) offeree acquires 2) Not a material change;
reliable info to that effect. 3) Offer does not expressly limit acceptance to the
exact offer; AND
Irrevocable Offers – (a) option contracts (if consideration 4) No objection was made within a reasonable time.
is given to keep an offer open); (b) merchant’s firm offer
(signed promise, merchant, up to 3 month); OR (c) offer - Material change = likely to cause hardship/surprise (i.e.
was relied on to the offeree’s detriment. disclaimer of warranties or arbitration clause).
Open price term – sale of goods – If both parties are 6. Consideration – Bargained for exchange of any act or
merchants (who deals in goods of the kind), the only forbearance that benefits the promisor or causes detriment
essential term is quantity. A reasonable price term will be to the promisee.
supplied under UCC. - Merchant’s firm offer may be enforced without
consideration.
Indefiniteness – If not certain (cannot be ascertained to a - Past/ moral consideration is not sufficient.
reasonable degree of certainty), then it is NOT - Material benefit rule – promise made in recognition of a
enforceable. If contract is indefinite as to duration, then benefit previously received is binding to the extent
contract is invalid. necessary to prevent injustice.
- BUT, not applied when: (a) conferred as gift; OR
4. Acceptance of Offer – A manifestation of assent to the (b) disproportional to the benefit conferred.
terms of the offer. - Illusory promise – one party has no obligation to
- Performance may be adequate. perform – invalid.
o Bilateral Contracts – start of
performance manifests acceptance.

- Promissory estoppel – Applies when: (1) one
reasonably and foreseeably relied to his detriment on other Fraudulent Misrepresentation: (1) knowingly, (2) making
party’s promise, (2) promisor reasonably expected a a false representation, (3) of material fact, AND (4) other
change in position in reliance of the promise, AND (3) party reasonably relies on the misrepresentation to his
necessary to avoid injustice. detriment.
B. Modification of Contracts 6. Illegality – Courts will not enforce contracts that are
illegal or contrary to public policy.
1. Pre-existing Duty Rule - Contract is void if illegality executed at the time of
Under the common law, past performance/pre-existing contract formation.
duty is NOT adequate consideration. - Performance is discharged if contract subsequently
– may become sufficient if: (a) addition or change in become illegal.
performance; OR (b) unforeseen difficulty that is - A contract with illegal purpose is voidable by the party
so severe it excuses performance, who did not know illegal purpose.
2. UCC Exception 7. Unconscionability – shocks the conscious of the court.

- No consideration requirement, and a modification valid if
in good faith. Procedural Unconscionability – one party has superior
- But must be in writing if: bargaining position over the other party and uses that
a. falls within Statute of Frauds; OR power to their advantage.
b. original contract states that modifications must be Substantive Unconscionability – contract contains terms
made in writing. that are obviously unfair and one-sided in favor of the party
with the superior bargaining power.
C. Defenses to Enforceability
8. Impracticability
- A later unforeseeable event by both parties makes
1. Incapacity
performance extremely and unreasonably difficult or
- Voidable by who person who lacked capacity.
expensive.
- Minors are presumed to not have capacity.
- If applies, performance is discharged.
2. Economic Duress – voidable
9. Frustration of Purpose – excuses performance.
Elements: (1) an improper/wrongful threat made; (2)
Elements: (1) both parties knew the purpose at the time of
induced a party to enter into a contract; AND (3) the
formation, (2) unforeseeable superseding event outside
threatened party has no reasonable alternative but to enter
control, AND (3) destroyed the purpose or value of
into the contract.
contract.
3. Mutual mistake – may be rescinded/reformed
10. Statute of Frauds (SOF) – Contract not valid unless in
Elements: (1) both parties are mistaken as to a basic
writing signed by the party to be charged.
assumption, (2) mistake is material, AND (3) person
asserting the mistake did not bear the risk of the mistake.
Writing Requirement: Writing must (1) be signed, (2)
identify and describe the subject matter, (3) indicate a
4. Unilateral mistake
contract was made, AND (4) state all essential terms.
- A mistake that is unknown to other party = NOT a valid
defense.
Contracts Subject to SOF:
- BUT, if one party knew or had reason to believe of the
1. Marriage
mistake = voidable by mistaken party
2. Suretyship – promise to answer or pay for the
- mistake as to price/value is NOT considered material.
obligations of others.
a. Main purpose exception – no writing
5. Misrepresentation – voidable by injured party
required if main purpose was to benefit
himself.
Non-Fraudulent Misrepresentation: (1) statement of
3. Contract cannot be fully performed within 1
material fact, (2) by a party/agent, (3) statement is false
year.
(no wrongdoing), (4) inducing the contract, AND (5) other
4. Sale of real property or creating an interest in
party reasonably relies on the misrepresentation to his
land.
detriment.

5. Sale of goods for $500 or more (contract must 3. Obligation of Good Faith and Fair Dealing
contain parties, quantity, and nature of goods). - Every contract contains an implied obligation of good
a. Exceptions: faith and fair dealing to act honestly and fairly
i. Merchant’s Confirmatory - UCC requires honesty in fact. A merchant’s duty =
Memorandum – contract between honesty in fact and the observance of reasonable
two merchants, a writing signed only commercial standards of fair dealing in the trade.
by the party enforcing it, other party
did not object promptly. 4. Substantial Performance Doctrine (Common Law)
ii. Goods accepted or paid for – but Material Breach – A party does not render substantial
only applies for those goods, not the performance.
whole contract. - To determine if breach was material courts
iii. Custom Made Goods – substantial analyze: (1) extent of performance, (2) hardship,
start and not suitable for sale in (3) adequacy of compensation for loss to non-
ordinary course of seller’s business; breaching party, (4) likelihood breaching party will
iv. Admission during Judicial cure, (5) whether breach was intentional.
Proceeding.
A material breach excuses non-breaching party’s
D. Interpretation of Contracts performance.
Parol Evidence Rule – Cannot introduce a prior or Minor Breach – will not excuse performance (but may
contemporaneous agreement (oral/written) that contradicts bring separate action for damage resulting from the
a later writing. breach).
Exceptions:
1. To correct clerical error or typo. 5. UCC Perfect Tender Rule & Exceptions
2. Establish a defense against formation.
3. Interpret vague or ambiguous terms (but courts Perfect Tender Rule:
will interpret using the plain meaning rule). - Seller must deliver conforming goods.
4. To supplement a partially integrated writing. - Smallest non-conformity is a breach and buyer may
reject all or a portion of the goods.
Partially Integrated Writing = does not contain a - A rejection of goods must be made within a reasonable
complete statement of all the terms. time.
- Proof is allowed if it does not contradict the writing.
Fully Integrated Writing = complete and exclusive Exceptions:
statement of terms; discharges prior agreements 1) If the seller has Right to Cure
- Merger clause is evidence that the writing is complete a. Time for performance has not yet expired;
on its face (fully integrated). OR
b. May have further reasonable time to
The Parol Evidence Rule DOES NOT apply to subsequent substitute if reasonable grounds that
agreements. substitute goods would be accepted
(same type of non-conforming goods had
been accepted by the buyer in the past).
E. Performance, Breach, Repudiation, & Excuse
2) Installment Contract
a. May only be cancelled where an
1. Divisible Performance installment is so defective that it
- Treated as multiple contracts substantially impairs the value of the
- Performance of each part entitles a party to payment for entire contract.
that part. b. Buyer can reject an installment only if non-
conformity substantially impairs that
2. Express Conditions Precedent installment and the time to cure has past.
- Makes performance conditional upon the completion of
the condition. 6. UCC Revocation of Acceptance
- Excused by (a) a protected party’s failure to cooperate; - If buyer fails to reject goods after reasonable opportunity
OR (b) waiver (voluntarily gives up protection) – but can to inspect the goods, the goods are deemed accepted.
retract if the other party has not relied on it.

- After acceptance, buyer can revoke acceptance of goods Limit remedies for breach: Is allowed, so long as not
only if: unconscionable at the time the contract was formed.
a) non-conformity substantially impairs the value of - Exception #1: Limiting remedy for personal
the goods; OR injuries for consumer goods is presumed to be
b) defect was difficult to discover (latent) or buyer unconscionable.
had a reasonable assumption the defect would - Exception #2: The limited remedy fails of its
be cured. essential purpose.
- Revocation of acceptance must occur within a
reasonable time after the buyer discovers or should have 2. Express Warranty
discovered the nonconformity. Applies when:
- Not effective until buyer notifies the seller. 1) An affirmation of fact, promise, description,
- Must occur before there is any substantial change in the provide a sample;
goods. 2) Relating to the goods; AND
3) That becomes part of the basis of the bargain.
7. Anticipatory Repudiation - When a party
unequivocally states that they are unable or unwilling to - No intent needed to create an express warranty or to use
perform unless there has been a material change in the words warrant/guarantee.
other party’s position.
- Cannot be disclaimed by a seller.
If occurs, the non-breaching party may:
a) treat the contract as repudiated and may seek 3. Implied Warranty of Fitness for a Particular Purpose
damages before the time of performance is due; Applies when:
b) treat the contract as discharged; 1) Seller knows (has reason to know) of the buyer’s
c) wait until performance is due and then sue; OR particular purpose for which goods are required;
d) urge the other party to perform. AND
2) Buyer relies on the seller’s skill or judgment to
A party can retract its repudiation if timely (when the non- select or furnish suitable goods.
breaching party has not relied on it).
- Can be waived through conspicuous language or waiver
Demand for Adequate Assurances: If there are by buyer.
reasonable grounds for being insecure about performance,
a party may request in writing adequate assurances. If 4. Warranty of Title
the other party does not give assurances after asked to do - Warrants that: (1) title shall be good; AND (2) free from
so, the requesting party may treat that as an anticipatory any security interests, liens, or encumbrances.
repudiation. - May be expressly disclaimed by specific language or
circumstances.
8. Accord & Satisfaction
Accord – An executory contract between the parties G. Third-Party Issues
promising to relieve a contracting party of her obligations
under the contract in return for specific act. Generally, party who is not in privity of contract with
Satisfaction – Upon satisfaction of the accord (the new another party CANNOT assert a claim for breach of
act), the party is excused from further performance under contract.
the original contract.
1. Intended vs. Incidental Third-Party Beneficiaries
- If the debtor party fails to satisfy the accord, the creditor Intended 3rd Party Beneficiary à Not a party to the
party may sue either: (a) under the original contract; OR contract, but has rights under the contract b/c parties
(b) the accord terms. intend their respective performances to benefit the
identified third-party.
F. Warranties (UCC Art. 2) Incidental 3rd Party Beneficiary à Someone who just
happens to benefit from the contract (but has NO legal
1. Implied Warranty of Merchantability – All goods sold rights).
by merchant (dealing in goods of kind) must be fit for their
ordinary purpose.
Disclaimer: Must be expressly and conspicuously noted
on the writing - “as is” or “with all faults”.

2. Enforcement of Rights H. Remedies
- A 3rd party beneficiary may claim rights and sue to
enforce a contract ONLY IF his rights have vested à when 1. Expectation Damages
he: (a) accepted the benefit; (b) detrimentally relied; OR - Arise directly from the breach, and meant to put the non-
(c) sues to enforce. breaching party in the same position it would have been in
- Once vested, the contract cannot be changed or modified but for the breach.
without consent of the 3rd party. - To recover, damages must be: (1) caused by D; (2)
foreseeable; (3) certain (not speculative); AND (4)
3. Delegation of Duties unavoidable (reasonable steps were taken to mitigate
- All contract duties are delegable UNLESS: damages).
a) contract prohibits delegation or assignment;
b) delegation is against public policy; 2. Consequential Damages
c) personal service contract calls for very specific - Arise indirectly from the breach.
skills; OR - To recover, damages must be: (1) reasonably
d) delegation materially alters the expectancy of the foreseeable at the time of contract formation; (2) arise from
obligee. P’s special circumstances that D had reason to know of;
AND (3) certain (not speculative).
- Assignment generally includes a delegation of the
unperformed duties. 3. Punitive Damages
- Meant to punish defendant.
- Delegating/assigning party remains liable for non- - Generally not available for breach of contract.
performance unless a novation occurs. - May be awarded for breach of contract involving fraud or
tort claims.
4. Assignment of Rights
- Rights and benefits may be transferred to a 3rd party if: 4. Specific Performance
1) assignor manifests his intent to transfer; AND - Equitable remedy, only available if monetary damages
2) assignee assents to the assignment. are inadequate to compensate an injured party.
- Consideration is not required. - Not awarded for personal service contracts, but injunctive
- If consideration is given, the assignment is NOT relief may be awarded.
revocable.
- Gratuitous assignments may be revoked. 5. UCC Seller’s Remedies/Damages
When a buyer breaches, a seller may recover/do any of
Limitations – An assignment is valid UNLESS: the following:
a) Materially alters what is expected – (i) changes a) Withhold delivery of goods;
duty of obligor, (ii) increase the risk on obligor, or b) Cancel the contract;
(iii) impairs obligor’s chance obtaining or reduce c) Cover damages - difference between the resale
value of return performance; price and the contract price (used when seller
b) Prohibited by law or public policy; resold in good faith);
c) Precluded by contract – (i) prohibitions – d) Market damages – difference between market
assignment is valid, liable for damages; (ii) price and contract price;
invalidations – assignment is void. e) Lost Volume Seller – can recover lost profit on
sale if regularly engages in the sales of goods at
Rights of Assignee/Assignor: Assignee may sue obligor issue and unlimited inventory;
for non-performance. f) Stop delivery of goods (if buyer is insolvent and
- Any defense against assignor may be used goods are in possession of carrier/bailee); OR
against assignee. g) Replevy identified goods from an insolvent buyer
- May sue assignor for wrongful revocation or for (in certain instances).
breach for implied warranty.
Multiple assignments:
- If gratuitous assignment à Last assignee prevails
- If for consideration à First assignee prevails UNLESS
later assignee (1) has no notice, and (2) is the first to
obtain payment/indicia of ownership.

6. UCC Buyer’s Remedies/Damages
When a seller breaches, a buyer may recover any of the
following:
a) Cover damages – difference between contract
price and price of substitute goods (if purchased in
good faith);
b) Market damages – difference between market
price and contract price (if not in good faith or no
cover at all); OR
c) Loss in value damages – difference between the
value as promised and the value of the non-
conforming goods (when buyer kept non-
conforming goods).
7. Restitution (Unjust Enrichment)

- Awarded to prevent unjust enrichment when one party
confers a benefit.
- Damages = value of benefit conferred.
- A party cannot recover both restitution and expectation
damages.
8. Rescission
- Treats the original contract as cancelled.
- Available when there is a problem with contract
formation.
- A contract will NOT be rescinded if: (a) there is a valid
equitable defense; OR (b) plaintiff sued for damages under
the contract in a prior action (but may sue for both at the
same time).
9. UCC Replevy of Goods

A seller is allowed to replevy goods when:
1) Buyer was insolvent when received goods; AND
2) Seller makes a demand within 10 days of buyer
receiving the goods.
A misrepresentation of solvency in writing within 3 months
prior to the delivery of goods removes the 10-day limitation
above.
10. Mitigation of Damages

- A party CANNOT recover damages that could have been
avoided.
- Must take reasonable step to mitigate losses. If a party
fails to do so, the court will reduce total damages by the
amount that could have been avoided.

CRIMINAL LAW & PROCEDURE
A. General Principles 1st Degree Murder – deliberate and premeditated
MPC Murder - Killing of a person committed: (a)
1. Elements of a Crime purposefully or knowingly, OR (b) recklessly under
(1) Physical Act (actus reus) circumstances manifesting extreme indifference to the
(2) Mental State (mens rea) value of human life.
(3) Causation: – recklessness is presumed under Felony Murder Rule
- “but for” cause (robbery, rape, arson, burglary, kidnapping).
- proximate cause = foreseeable
[A superseding force breaks the chain of causation if (i) 2. Manslaughter
independent, AND (ii) not foreseeable.] Voluntary Manslaughter - Intentional killing of a person
(4) Concurrence of Physical Act & Mental State with adequate provocation
Adequate Provocation = (1) D was provoked, (2)
2. Mental States reasonable person would have been provoked, (3) not
enough time to cool off, AND (4) in fact did not cool off.
Model Penal Code (MPC): Involuntary Manslaughter – Unintentional killing of a
Purposefully – conscious object to engage. person either: (a) recklessly, (b) under the misdemeanor
Knowingly – aware that conduct is of a particular murder rule, (c) during a non-dangerous felony, OR (d)
nature or will cause a certain result. criminal negligence (in some states).
Recklessly – consciously disregards a substantial and MPC Manslaughter – Killing a person committed: (a)
unjustifiable risk + action is a gross deviation from how recklessly, OR (b) committed under the influence of
a reasonable person would act. extreme mental or emotional disturbance for which
OR creates such a risk, but is unaware of it solely by reasonable explanation or excuse.
reason of voluntary intoxication.
Criminal negligence – fails to perceive a substantial C. Other Crimes
and unjustifiable risk + failure is gross deviation from
the standard of care. 1. Robbery - (1) trespassory taking and carrying away, (2)
of the personal property of another, (3) from the person in
Common Law (CL): their presence, (4) by the use of force or threat of
Intentionally – intends or desires immediate physical harm, (5) with the intent to
permanently deprive the owner of the property.
Willful Blindness Standard à Aware that certain facts - Armed robbery = uses dangerous weapon.
are highly probable or intentionally ignorant to a certain 2. Burglary – (1) breaking and entering, (2) of dwelling, (3)
fact. of another, (4) at night, (5) for the purpose of committing a
felony inside.
B. Homicide 3. Larceny – (1) trespassory taking, (2) and carrying
away, (3) of the personal property of another, (4) within the
1. Murder (Common Law & MPC) intent to permanently deprive the owner of the property
(intent must exist at the time of taking).
2nd Degree Murder – (1) unlawful killing, (2) of a person, 4. Larceny by Trick – obtain possession (not title) of the
(3) with malice aforethought personal property of another by trick or deception.
Malice Aforethought = (a) intent to kill, (b) intent to inflict 5. False Pretenses – (1) obtain title, (2) to personal
great bodily harm, (c) reckless disregard of an extreme risk property of another, (3) through an intentional false
to human life, OR (d) intent to commit an inherently statement, (4) with intent to defraud.
dangerous felony (felony murder rule).

6. Embezzlement – (1) fraudulent or wrongful, (2) 3. Conspiracy
conversion, (3) of property of another, (4) by a person with Elements:
lawful possession who is in a position of trust. 1) Express/implied agreement between two or more
7. Battery – (1) unlawful application of force, (2) directly or persons;
indirectly upon another person or close personal 2) Intent to enter into agreement;
belongings, (3) resulting in injury or offensive contact. 3) Intent to pursue an unlawful objective (most states
- Battery = general intent crime. = all parties; minority states = only require one
- Intent to cause injury is NOT required. party’s intent); AND
8. Assault – (a) an attempted battery, OR (b) intentional 4) Commission of overt act in furtherance of the
creation of a reasonable apprehension of imminent bodily unlawful objective – any act taken by a co-
harm to a person. conspirator is sufficient.
9. False imprisonment – (1) unlawful, (2) confinement of
a person, (3) against their will, (4) with knowledge that the - A conspirator is liable for the conspiracy + all foreseeable
restriction is unlawful. crimes committed by co-conspirators in furtherance of the
MPC à D knowingly restrains another unlawfully so unlawful objective.
as to substantially interfere with the person’s liberty. - Withdrawal is NOT a defense for the conspiracy, but is a
10. Kidnapping defense for crimes committed by co-conspirators after the
- Common Law à Kidnapping is (1) confining, restraining, withdrawal.
or moving a person, (2) without authority of law.
- MPC à Kidnapping is abducting another person for a 4. Solicitation
purpose to: (a) compel a 3rd person to pay ransom; (b) Elements:
facilitate the commission of a felony; (c) inflict bodily injury 1) Request another to commit or join in the
or terrorize; OR (d) interfere government or political commission of a crime;
function. 2) With the specific intent that the crime be
11. Arson – (1) malicious, (2) burning, (3) of a dwelling, committed; AND
(4) of another. 3) The other person receives the request.
- A majority of states include damage by explosives - Merges with the substantive crime.
and to other types of building and vehicles. - Renunciation – is an affirmative defense if Defendant: (1)
voluntarily/completely renounces; AND (2) prevents the
D. Inchoate Offenses commission of the crime.
1. Attempt – Elements: (1) had specific intent to commit a E. Parties to a Crime

crime, AND (2) took an overt act sufficiently beyond mere
preparation – a “substantial step”. 1. Accomplice Liability
- Attempt merges with the underlying crime. Accomplice – (1) aids, abets, or facilitates the
commission of the crime; AND (2) dual intent (intent to
2. Abandonment/Withdrawal Defense to Attempt assist the primary party, and intent that the crime be
- Most States à NOT defense to attempt once D has committed).
taken a substantial step. - An accomplice is liable for all foreseeable crimes
- Minority States à Abandonment before the completion committed by primary party.
of the crime is an affirmative defense to attempt if: (1) D - Merely being present or knowing a crime will result
voluntary renounces his criminal purpose; AND (2) DOES NOT create accomplice liability.
completely abandons the effort to commit the crime or - Withdrawal – is a defense if D withdraws before the crime
otherwise prevents its commission. becomes unstoppable, and requires: (1) repudiating the
encouragement given; AND (2) neutralize assistance
given.

F. Defenses - Standing required to challenge a search – must have a
reasonable expectation of privacy regarding place or item
1. Duress – Conduct was result of (1) threat of imminent searched (own or possess space, applies to overnight
death or serious bodily injury, (2) to defendant or another, guests).
(3) unable to avoid the harm by noncriminal conduct. - Sup. Ct. has held no right to privacy for: (1) paint
- In most states, a duress defense is not available for an scrapping taken from car; (2) bank account records; (3)
intentional killing. visible from public airspace; (4) garbage left on the curb;
(5) sounds of one’s voice; (6) odors; (7) handwriting; and
2. Mistake of Fact - not defense unless it negates the (8) anything that can be seen in or across areas outside
state of mind required for the crime. home.
3. Insanity 2. Arrest - Probable Cause/Warrant

D must have mental disease or defect, PLUS - To be proper - must have probable cause (a reasonable
- M’Naghten Test – unable to know the wrongfulness of suspicion to believe that a crime has occurred).
his conduct or unable to understand the nature and quality - Need not have firsthand knowledge (may be based on
of his act. informant’s information).
- MPC Test – unable to appreciate the criminality of his - For an arrest in or at someone’s home, a warrant is
conduct or unable to conform his action to the law. required (unless exigent circumstances).
- Irresistible Impulse Test – unable to control his actions
or unable to conform his action to the law. 3. 4th Amendment Warrant Requirements
- Durham Test – unlawful conduct was the product of For a warrant to be valid – (1) probable cause – reliable
mental illness. info that evidence will be found; (2) state with particularity
place and item; AND (3) be issued by neutral and
4. Self-Defense/Defense of others - Based on detached magistrate.
reasonable belief of: (1) imminent danger of being killed or
suffering great bodily injury; AND (2) use of deadly force 4. Seizures
was necessary. Seizure – occurs when a reasonable person would have
Minority of States: D has a duty to retreat before believed that he was not free to leave.
deadly force may be used. But, no duty to retreat if: Request for Information – allowed anytime except on
(a) no opportunity to retreat or could not retreat safely; “whim or caprice”.
OR (b) if attacked in own home. Stop & Inquire – reasonable articulable suspicion that
criminal activity is afoot - allows a brief detention for
Imperfect Self-Defense – Mitigates murder to questioning.
manslaughter if self-defense was in good faith, but Stop & Frisk – reasonable suspicion that the person has a
unreasonable. weapon.
- Plain Feel Doctrine – police may only seize items
5. Intoxication he or she reasonably believes is contraband or a
Voluntary Intoxication – Ingesting by his own will – weapon.
ONLY a defense to specific intent crimes (such as Reasonable Suspicion = quantum knowledge sufficient to
burglary, assault, attempt). induce an ordinarily prudent and cautious person to
Involuntary Intoxication – Defense to all crimes – same believe that criminal activity is at hand.
tests used as an insanity defense.
5. Warrant Requirement Exceptions
G. Arrest, Search and Seizure (4th Amendment) Evidence obtained without valid warrant is excluded unless
it falls under an exception.
1. Standing to Challenge a Search (1) Search Incident to Arrest – may search suspect’s
- 4th Amend. grants protection from unlawful search and person + “wingspan”.
seizure.

– If arrested in automobile, includes passenger’s - Miranda rights attach when suspect is in custodial
compartment and any containers found in the car if interrogation.
there is reason to believe it contains contraband. - Police must give Miranda warnings– (1) have the right
(2) Plain View Doctrine – may seize items if (1) observed to remain silent, (2) anything said can be used against
with any of 5 senses in plain view, (2) from a place lawfully suspect in court, (3) have right to talk to an attorney and
permitted to be, AND (3) probable cause to believe the have one present when they are questioned, and (4) if
items are evidence of a crime or contraband. cannot afford an attorney, one will be provided.
(3) Automobile Exception - If no Miranda warning given or suspect waives rights,
- Allows a warrantless search if probable cause that statement must be excluded through the Exclusionary
contraband/evidence of a crime will be found in the Rule.
vehicle. - 5th Amend. only protects statements and acts that are
- Can search entire car + packages, luggage, containers communicative/testimonial in nature.
that may reasonably contain the items for which there is - For a suspect to invoke Miranda rights – it must be clear
probable cause. and unambiguous.
- In order to search after traffic stop – need probable
cause prior to search. 2. Prosecution Cannot Comment on Silence
(4) Consent – If given freely, voluntarily, intelligently. - The invocation of the right to remain silent CANNOT be
- 3rd person with authority may consent. commented by Prosecution or used to incriminate him at
- If 2 or more people share authority – any one of them trial.
may consent, but cannot search private areas (that only
the non-consenting person has authority to give – a private 3. Confessions – If obtained in violation of D’s
bedroom). constitutional rights, the confession may be excluded
(5) Stop and Frisk under the exclusionary rule.
(6) Inventory Search – allows search when incarcerated 14th Amend. Due Process Clause – Violates rights if it’s
or an impounded vehicle. the product of police coercion that overbears the suspect’s
Inventory search must be (1) reasonable, AND (2) will.
conducted pursuant to established police agency 5th Amend. Privilege Against Self-Incrimination –
procedures (that are designed to meet the legitimate Suspect must be given Miranda rights if there is a
objectives of the search while limiting the discretion of the custodial interrogation à (1) Custody – person’s freedom
officer in the field). of action is limited in a significant way, AND (2)
(7) Exigent circumstances – Allows warrantless search Interrogation – police knew or should have known they
when: (a) evidence is evanescent (will dissipate or were likely to elicit an incriminating response.
disappear); (b) it’s necessary to prevent imminent - A suspect’s rights are violated if no Miranda
destruction of evidence; (c) police are in hot pursuit of a warnings are given.
felon and evidence is in plain view; OR (d) emergency aid - Spontaneous/waiver.
exception applies. 6th Amend. Right to Counsel – Suspect has the right to
(8) Special Need – applies in very limited circumstances. counsel when formally charged. He cannot be questioned
without his lawyer, and anything said is inadmissible
H. Confessions & Privilege Against Self- (unless a valid waiver occurs).
incrimination
Waiver of Rights – Must be knowing, intelligent, and
1. Miranda Rights / Right to Remain Silent voluntary.
- 5th Amendment protects against compulsion of self-
incriminating statements when in a custodial interrogation.
Custody = reasonably believe they are not free to
leave.
Interrogation = likely to elicit an incriminating
response.

I. Right to Counsel K. Fair Trial and Guilty Pleas
1. 5th Amendment & Miranda Rights Right to Jury Trial – 6th Amend. applies to criminal
- Applies when subject to custodial interrogation. defendants. Any fact (other than a prior conviction) that
- Suspect has the right to consult with counsel and to have increases the maximum penalty for a crime MUST be
an attorney present during questioning. submitted to a jury and proven beyond a reasonable
- Must be invoked clearly and unambiguously. doubt.
- Once invoked, police must stop ANY questioning.
- Police may reinitiate questioning if: (1) suspect is re- Competence to Stand Trial – Competent to stand trial if:
advised of his Miranda rights; (2) has provided a knowing 1) Sufficient present ability to consult with attorney;
and intelligent waiver; AND (3) either (a) counsel is AND
present; (b) suspect initiates communication; or (c) 14- 2) Rational and factual understanding of
days have passed since suspect was released from proceedings.
custody. *D must be able to assist in preparing his defense.
2. 6th Amendment Right to Counsel L. Double Jeopardy

- D has right to counsel in all criminal prosecutions.
- Attaches once formal adversarial judicial proceedings are Double Jeopardy – Prevents a D from being prosecuted
commenced (formal charge, preliminary hearing, twice for the “same offense”.
indictment, information, arraignment). - Under Blockburger test, two crimes are NOT same
- Once attached, any attempts to deliberately elicit offense if each crime requires proof of a fact which the
statements in absence of attorney violate 6th amendment. other does not.
- Right is offense specific. - Jeopardy attaches when jury is impaneled and sworn.
- Exceptions: (1) hung jury, (2) manifest necessity to end
3. Waiver of Right to Counsel – Must be made trial, (3) terminate trial at D’s request and not acquittal on
knowingly, intelligently, voluntarily. D must understand the the merits.
nature of the right being waived and the consequence for
waiving it. Police failure to provide outside info DOES NOT M. Burdens of Proof and Persuasion
invalidate a waiver (unless info was essential).
1. Burden of Proof
4. Ineffective Assistance of Counsel Prosecution must prove every element of a crime beyond
- Strickland Test – (1) counsel’s performance was a reasonable doubt.
deficient, AND (2) but for the deficiency, the result would
be different. 2. Motion for Judgment of Acquittal – At the close of its
- If shown, verdict must be reversed and D is entitled to a case or close of all evidence, a D may move for a
new trial. judgment of acquittal. Motion must be granted if evidence
is insufficient to sustain a conviction for an offense (jury
J. Police-Arranged Identification Procedures would not find element was proven).
1. Pre-Charge Line-up N. Exclusionary Rule

- An Unnecessary suggestive pre-charge line-up violates
suspect’s 14th Amend. due process rights when there is 1. Exclusionary Rule
substantial likelihood of misidentification. - Evidence obtained in violation of 4th, 5th, 6th
- Court identification is admissible if it’s (1) in court, (2) Amendment rights is inadmissible at trial.
trustworthy, AND (3) based on a previous transaction. - All derivative evidence is also inadmissible under the
- D has NO right to refuse a line-up. fruit of poisonous tree doctrine.

2. Exceptions to Exclusionary Rule: (a) independent
source of the secondary evidence; (b) discovery was
inevitable regardless of the illegality; (c) attenuation
doctrine – D’s free will restored through passage of time or
intervening events; OR (d) relied in good faith on a
defective warrant.
3. Limitations on Miranda Violations

(1) A statement in violation of Miranda may be used to
impeach D, but cannot be used to impeach 3rd party
witness.
(2) Not required to suppress the physical evidence
because of D’s statements (as long as statements
voluntary).
(2) Subsequent statement made after Miranda warnings
are admissible UNLESS previous statement was obtained
through the use of inherently coercive police tactics
offensive to Due Process.

EVIDENCE
A. Relevancy and Exclusion of Evidence
Physical evidence – through witness testimony or by
1. Relevance evidence that shows it has been held in a substantially
Evidence is relevant if: (1) it has any tendency to make a unbroken chain of custody.
fact more or less probable than it would be without it; Voice recordings – by anyone who has heard the person
AND (2) the fact is of consequence in determining the speak and have identified the recorded person as the
action. speaker.
2. Rule 403 Exclusions 2. Best Evidence Rule – A party must provide the original
The court may exclude relevant evidence if its probative document (or reliable duplicate) when a witness:
value is substantially outweighed by a danger of: a) testifies to the content of a writing; OR
a) unfair prejudice; b) testified to knowledge gained solely from a writing.
b) confusing issues;
c) misleading the jury; - The original document NOT required if:
d) undue delay; a) there is a reliable duplicate (a photocopy);
e) wasting time; OR b) all the originals are lost or destroyed;
f) being needlessly cumulative. c) an original cannot be obtained by judicial process;
d) it was not produced after proper notice was given
3. Subsequent Remedial Measures to the party in control and against whom it would
Not admissible to prove: be offered against; OR
a) negligence; e) not closely related to a controlling issue.
b) culpable conduct;
c) a defect in a product design; OR C. Character Evidence
d) a need for a warning or instruction.
BUT, such evidence may be admitted for other purposes. 1. Character Evidence
- Generally, character evidence is NOT admissible to
4. Compromise/Settlement Offers & Negotiations prove propensity (that a person acted in conformity with a
Statements made during settlement negotiations are NOT character trait on a particular occasion).
admissible to: - But, character evidence is generally allowed for non-
a) prove the validity or amount of a disputed claim; propensity purposes (i.e. when character is an ultimate
OR issue in the case - defamation).
b) impeach by prior inconsistent statements.
May be offered as circumstantial evidence to prove
5. Pleas & Plea Negotiations propensity, BUT ONLY ALLOWED WHEN:
The following are NOT admissible in a subsequent civil or
criminal case: [Criminal case]
a) statements made during plea discussions; <D’s character>
b) a nolo contendere plea; OR – D can always offer evidence of his own character.
c) guilty plea that is later withdrawn. – P not allowed to prove D acted in accordance with D’s
character trait unless D opens the door.
6. Paying or Offering to Pay Medical Expenses <Victim’s character (not involving rape)>
NOT admissible to prove liability, BUT any related – D can offer reputation and opinion evidence to show
statements or factual admissions are admissible. victim’s character to show D’s innocence.
– If D presents evidence of victim’s character, P can offer
7. Liability Insurance evidence: (a) D possesses same character trait; or (b)
NOT admissible to prove liability, BUT admissible for other victim’s good character trait.
purposes (i.e. ownership and control). <Victim’s character (involving rape)>
– Not admissible – victim’s sexual behavior/predisposition
B. Physical & Documentary Evidence – Admissible – (a) if offered to prove D was not involved in
the sex crime; (b) sexual relations between D and V; (c) if
1. Authentication of Evidence exclusion violates D’s constitutional rights.
All evidence must be authenticated before being admitted.

<Victim’s character (homicide case)> - 10-Year Exception: If 10-years have passed (from
– Admissible only if D claims victim was the aggressor, P conviction or release from jail – whichever is later),
can show V’s peacefulness. conviction is inadmissible unless probative value
outweighs prejudice.
[Civil case]
– Character evidence to prove propensity is generally NOT 2. Specific Instances of Conduct
admissible in a civil case. Witness’s credibility may be attacked on cross-
examination with specific instances of conduct (prior bad
<Victim’s character (alleged sexual misconduct)> acts) only if the conduct is probative of the witness’s
– Admissible if probative value substantially outweighs the character for untruthfulness.
danger of harm to any victim and unfair prejudice to any - Extrinsic evidence NEVER admissible to attack or
party. support a witness’s credibility.
– Victim’s sexual behavior/ predisposition admissible only
if the victim has placed it in controversy. 3. Prior Inconsistent Statements
Admissible to impeach a witness.
Character Evidence (FRE)
(1) direct examination à reputation, opinion. Extrinsic evidence of the statement is allowed ONLY IF:
(2) cross-examination à opinion, reputation, specific acts. 1) Relevant to a material issue at trial (one other
than the witness’s credibility); AND
2. Specific Bad Acts - generally NOT admissible to show 2) Proper foundation is shown (witness is first
propensity. given an opportunity to explain or deny the
statement and an adverse party is given an
- Admissible to show Motive, Identity, Absence of opportunity to examine the witness about it).
Mistake or Accident, Intent, Common Plan or Scheme, BUT, the above requirements DO NOT apply when
Opportunity, or Preparation. extrinsic evidence is offered against a Party Opponent.
- Sexual assault or child molestation – admissible in 4. Character for Truthfulness

case if D is accused of such conduct. - Witness’s credibility may be attacked or supported by:
a) testimony about reputation for having character of
- To offer such evidence, proponent must show: untruthfulness/truthfulness; OR
1) by preponderance of evidence that prior act was b) testimony in the form of opinion.
committed; AND - BUT, evidence of truthful character is admissible only
2) probative value substantially outweighs the danger after attacked.
of unfair prejudice. - Extrinsic evidence is NOT admissible.
3. Habit or Routine Practice 5. Memory Loss

- Admissible to show the person acted in accordance with - A witness’s ability to observe, remember, or relate facts
their habit or routine practice. accurately may be attacked on impeachment.
- Habit = regular response to a repeated situation. - Extrinsic evidence is admissible for this purpose.
D. Impeachment 6. Hearsay Declarant

- May be attacked or supported by any evidence that
1. Prior Convictions would be admissible if the declarant had testified as a
- Prior felony/ misdemeanor involving dishonesty = always witness.
admissible to impeach unless expunged. - Evidence is admissible regardless of when or whether
- Other misdemeanors = NOT admissible declarant had an opportunity to explain or deny it.
- Felonies that DO NOT involve dishonesty:
• Civil/Criminal Cases: E. Presentation of Evidence
o Admissible if witness is not the defendant
(subject to Rule 403 exclusions); 1. Refreshing Recollection
• Criminal Cases: - A document may be used to help refresh a witness’s
o Admissible if defendant is the witness but recollection when the witness once had personal
only if probative value outweighs knowledge of the matter, but is unable to recall it.
prejudicial effect. - Only the opposing party may offer into evidence the item
used.

2. Judicial Notice – A court may take judicial notice of 3. Deemed Non-Hearsay (under FRE):
indisputable facts: Admission by party opponent – any statement offered
a) commonly known in the community; OR against a party which is made by that party (or their
b) readily capable of verification and cannot be agents).
reasonably questioned. Prior statement of identification – declarant identifies a
person as someone they perceived earlier.
Criminal cases à court must instruct jury that it may or Judicial and extrajudicial admissions
may not accept the noticed fact as conclusive. Prior statements made under oath – admissible if: (1)
Civil cases à fact is dispositive – court must instruct jury declarant testifies; (2) declarant was subject to cross-
to accept notice fact as conclusive. examination; AND (3) prior inconsistent statement was
given under oath.
3. Lay Witness – Any person who gives testimony in a
case that is not called an expert. 4. Hearsay Exceptions
- Testimony is admissible if witness: (1) is competent to Present Sense Impression – Statement describing an
testify (competency is presumed under FRE); AND (2) event made by the declarant while observing the event or
has personal knowledge of the matter. immediately thereafter (few minutes = ok).
- May offer an Opinion if: (1) rationally based on Excited Utterance – Statement concerning an
perception; (2) helpful to the jury (not legal conclusion); exciting/startling event, made while the declarant is still
AND (3) not based on scientific, technical, other under the stress of the event (slight delay = ok)
specialized knowledge. Business Records – Admissible if: (1) records of events,
conditions, opinions, diagnoses; (2) kept in the regular
4. Expert Witness course of business; (3) made at or near the time of matter
Expert testimony is permitted when: described; (4) made by person with knowledge; (5) regular
1) qualified as an expert; practice of the business; AND (6) opponent party does not
2) helpful to jury; show lack of trustworthiness.
3) expert believes in the opinion to a reasonable Statements Made for Medical Diagnoses/Treatment –
degree of certainty; Not excluded by hearsay rule if statement: (1) made for
4) supported by sufficient facts or data; AND medical diagnosis or treatment; AND (2) describes
5) based on reliable principles that were reliably medical history or symptoms (past or present).
applied. Statements of Mental, Emotional, or Physical
Condition – Admissible if statement of then-existing state
Daubert/Kumho standard – Reliability is based on of mind (motive, intent, plan) or emotional or physical
(1) publication and peer review, (2) error rate, (3) condition. BUT, statements of memory or belief are NOT
testability, AND (4) generally accepted in the field. admissible unless it relates to the validity or terms of the
declarant’s will.
F. Hearsay Dying Declaration – Can only be used in civil case or
criminal homicide case.
1. Hearsay – Hearsay is an out of court statement that is Elements to be admissible: (1) declarant unavailable; (2)
offered to prove the truth of the matter asserted. statement made under a sense of impending death; AND
- Admissible ONLY IF it falls under an exception. (3) statement concerned the circumstances or cause that
- Nonverbal act can be statement if intended as an put the declarant in the position of impending death.
assertion. Statement Against Interest – A statement against own
- Multiple hearsay – each level of hearsay must fall within penal, proprietary, or pecuniary interest is admissible if the
an exception. declarant is unavailable.
- If offered in a criminal case, it must be supported by
2. Non-Hearsay – admissible if offered to prove something corroborating circumstances that clearly indicate its
other than the truth of the statement. trustworthiness.
Common non-hearsay statements: Government/Public Records – The following records are
(1) verbal acts of independent legal significance; admissible: (a) record describing policies and practices of
(2) to show the effect on the listener; a public office; (b) observations made by someone in
(3) prior inconsistent statement used to impeach; and accordance with his duties by law (excluding police report
(4) circumstantial evidence of the speaker’s state of in criminal case); OR (c) factual findings made during
mind. investigation pursuant to authority granted by law (only in
civil cases or against government in criminal case).

- BUT records above will not be admitted if H. Privileges
opponent party shows lack of trustworthiness.
Past Recollection Recorded – is record made on a 1. Spousal Immunity
matter the witness once knew about but now cannot recall – A witness-spouse in valid marriage may refuse to testify
well enough to testify fully and accurately. against spouse in a criminal case.
- Is admissible if: (1) witness had personal - Only the witness-spouse holds this privilege – but it ends
knowledge at one time; (2) writing was made or after divorce.
adopted by witness; (3) was made while the event - Spousal immunity DOES NOT apply in civil cases.
was still fresh in the witness’s mind; (4) accurate;
AND (5) witness can no longer remember the 2. Confidential Marital Communications
event. Communications between spouses are privileged if:
- The record can read into evidence, BUT can only 1) made during course of a valid marriage; AND
exhibit offered by an adverse party. 2) intended to be confidential.
- The privilege DOES NOT apply: (a) in cases between
Declarant Unavailable Requirement – Unavailable if spouses; OR (b) when spouse commits crime against the
witness – (a) is exempt due to privilege; (b) refuses to other spouse or their children.
testify despite a court order; (c) does not remember; (d) - Either spouse may assert privilege – it applies after
cannot be present because of death or illness; OR (e) is divorce.
beyond the reach of a court’s subpoena and cannot be - Privilege applies in both civil and criminal cases.
procured by reasonable means.
3. Attorney-Client Privilege
G. 6th Amendment Confrontation Clause Protects confidential communications between and
attorney and client if:
6th Amendment Right to Confront Witnesses 1) intended to be confidential
- Gives a criminal defendant the right to confront witnesses 2) made to facilitate legal services
against him.
- The use of an out-of-court statement (even if a hearsay - The client holds the privilege, and may waive it by
exception) violates 6th Amend. when: disclosing info to a 3rd party (but not waived through
1) Statement is testimonial; inadvertent disclosure).
2) declarant is unavailable to be cross-examined at - Corporations – generally applies to high level employee
trial; AND only.
3) D did not have opportunity to cross-examine the - Privilege DOES NOT apply when: (a) sought to further a
declarant before trial. crime or fraud; (b) litigation related to breach of duty
between attorney and client; OR (c) joint clients are later
Testimonial – The following statements are testimonial: (a) involved in civil litigation against each other.
made to grand juries; OR (b) to police whose primary
purpose was to collect testimony to be used at a later trial. 4. Attorney Work Product Doctrine – Protects from
- A statement to assist the police in an ongoing disclosure all materials prepared by an attorney (or his
emergency is NOT testimonial. agents) in anticipation of or during litigation.
Exception: A party shows – (1) a substantial need for
Ongoing Emergency – Existence of ongoing emergency the materials exists; AND (2) a substantial equivalent
determined by: (1) nature of dispute; (2) potential harm to cannot be obtained without undue hardship.
victim; (3) threat to additional identifiable victims; (4)
generalized threat to the public; (5) weapon; (6) whether 5. Physician-Patient Privilege
suspect is at large, located, or not apprehended. - Most states recognize the privilege if: (1) confidential
patient communication, (2) made to physician, (3) for
purpose of medical diagnosis or treatment.
- Federal courts DO NOT recognize the privilege.
However, state law governs privilege for civil cases in
federal court on a claim/defense when state law supplies
the rule of decision.

FAMILY LAW
A. Getting Married
2. Child Custody & Support – NOT binding on a court,
1. Marriage Requirements (State of Mind/Procedural) and any provision that adversely affects a child’s right to
A valid marriage requires: (1) consent; (2) marriage support is unenforceable.
license; AND (3) solemnized by ceremony by judicial If agreement is not in the child’s best interests, a
officer or church. court may order a parent to pay an amount
Consent – Depends on the state. Courts will find reasonable or necessary for the child’s support.
consent if: (a) sought some benefits of marriage (some
states); or (b) obligations of marriage (other states). 3. Spousal Support –
- Some States à Invalid as against public policy.
2. Common Law Marriage - UPAA à Permitted, but not enforceable if makes spouse
Elements: (1) live together for specified amount of time; eligible for public support. Court may order support to the
(2) legally able to marry; (3) present agreement that they extent necessary to avoid eligibility.
are married; AND (4) hold themselves out as being
married. 4. Eliminating Fundamental Marital Duties & Allocating
- A valid common law marriage creates rights/obligations Financial Responsibility
identical to a ceremonial marriage. - Spouses may agree on any matter that is not in violation
- Most states will honor a CL marriage validly obtained in of public policy or criminal law.
another state. - May allocate financial responsibilities, but NOT binding
on third parties.
3. Bigamous Marriage - Agreements that limit spousal support during marriage =
A person CANNOT marry to more than one person at the generally void against public policy.
same time. A marriage is NOT valid if entered into when
one of the parties is still married (before the dissolution of C. Being Married
an earlier marriage).
BUT may be saved under: 1. Married Women’s Property Acts – Women retain full
(a) Equity Doctrine – strong presumption that the most rights to property after marriage.
recent marriage is valid (rebuttable if evidence shows
first marriage not dissolved); OR 2. Payment for Necessities – Spouses are required to
(b) UMDA – marriage may be validated upon removal pay for each other’s necessities, and are liable to a
of impediment. creditor who has provided such necessities.
Medical expenses are deemed necessities in some
B. Premarital Agreements states (non-debtor spouse may be liable to the extent
the debtor spouse is unable to pay).
1. Premarital Agreements – valid and enforceable unless
procured by fraud, duress, or coercion. D. Jurisdiction & Recognition of Decrees in Marital
UPAA (Uniform Premarital Agreement Act): Actions
- Agreement must be in writing and signed by both
parties. No consideration is required. 1. Jurisdiction in Marital/Divorce Actions
Not enforceable under UPAA if: - State courts have subject matter jurisdiction.
a) Involuntarily (fraud, duress, coercion); OR - Ex parte divorce – may be maintained without personal
b) Unconscionable when executed and before jurisdiction over the absentee spouse, if plaintiff spouse is
execution spouse was (i) not provided fair domiciliary of the rendering state.
disclosure; (ii) did not waive disclosure in writing; - Economic or child custody/support issues – must
or (iii) did not have knowledge of such information. have personal jurisdiction over the defendant spouse.
Voluntarily factors: (1) presence of independent counsel; - Divisible divorce – one spouse can terminate the
(2) length of time between agreement and wedding; (3) marriage in one proceeding, and reserve other issues for a
ability to understand the agreement; and (4) other reasons later proceeding.
for proceeding with the marriage (i.e. pregnancy).

2. Child Custody & Adoption Matters - Court MUST 4. Setting Aside Divorce Agreement – May be set aside
have personal jurisdiction over spouses. if: (1) substantially unfair; AND (2) result of fraud or
mediator misconduct.
PKPA (Parental Kidnapping Prevention Act) – Court
may decide child custody only if: F. Division of Property
(1) Home State Jurisdiction – home state or lived with a
parent for 6+ months immediately before custody action. 1. Division of Property
(2) Significant Connection Jurisdiction – no home state + Equitable Division of Marital Property Approach –
child and at least one parent have a significant connection marital assets are to be divided by equitable distribution -
to the state. cannot divide separate property.
(3) Emergency Jurisdiction – child is physically present in Separate Property is:
the state + child abandoned or emergency to protect child. 1) Property individually acquired before marriage;
(4) More Appropriate Forum Jurisdiction – no other state 2) Gifts and bequests to an individual during
has jurisdiction. marriage;
3) Property spouses agree will be separate property;
UCCJEA (Uniform Child Custody Jurisdiction & and
Enforcement Act) – Same as PKPA except for Significant 4) Passive appreciation – value only due to the
Connection Jurisdiction which is (a) no home state, OR (b) passage of time of the above property.
home state declined to exercise jurisdiction. Marital Property = ALL OTHER property acquired during
the marriage, including: (1) active appreciation – caused
Adoption Matters: Same as UCCJEA. by the effort of spouse(s); (2) future expectancies even if
payment will not be received until after the marriage ends.
E. Divorce, Annulment, Separation, & Dissolution Marital Property Distribution – Court considers various
factors including the services provided by one spouse who
1. Annulment – invalidates marriage stayed at home or put a career on hold.
Grounds: – Fault (adultery) on either party is irrelevant, but
a) lack of capacity – fraud, duress, mental incapacity; economic misconduct (dissipation of assets) is
b) bigamy; considered.
c) consanguinity (marriage between close family – Accrual of marital property ends in some states
members); OR when spouses are permanently separated, while
d) underage at the time of marriage. some states require a final divorce decree.
Fraud = made misrepresentation prior to the marriage 2. Professional Degrees or Licenses

regarding an essential and vital part (sex, procreation) of Most States: Not marital property, but reimbursement for
the marriage and marriage would not been consented to if any support provided by one spouse to obtain
the other spouse had been made aware. degree/license allowed.
- Waived if spouse continues to cohabitate after Minority View: Are marital property – value is based on
discovering the facts. potential future earnings.
- Usually NOT granted for misrepresentations
concerning character or financial situation. 3. Modification/No-Termination Upon Death
- Property division award CANNOT be modified, unless
2. Divorce Grounds exceptional circumstances (fraud, duress) exist.
Grounds: - Property division award DOES NOT terminate upon
a) cruel and inhuman treatment; death, and obligations may be enforced against estate.
b) adultery;
c) abandonment for a set amount of time; G. Spousal Support
d) habitual drug addiction or drunkenness; OR
e) no-fault divorce – irretrievable break down of 1. Spousal Support (a.k.a. Maintenance or Alimony)
relationship for set amount of time. - purpose is to maintain spouse’s standard of living and
limit any unfair economic effects of a divorce.
3. Setting Aside Separation Agreement – Invalid if UMDA – only awarded if: (1) lack sufficient property; (2)
(a) unconscionable, OR (b) result of fraud. unable to support herself through employment or is the
custodian of a child with a condition and cannot seek
employment.

2. Amount of Spousal Support - Some States à Obligation does not terminate, and
Relevant factors courts consider: (1) financial resources; allows access to the deceased’s estate to fulfill the future
(2) time necessary for obtaining job; (3) standard of living payments.
during marriage; (4) duration of marriage; (5) age, physical
condition; and (6) the ability of spouse paying support. 5. Modification
Some states will consider marital misconduct or fault. Most States à Alimony can only be modified when there
is a substantial change in circumstances making prior
3. Reinstatement of Prior Award order unreasonable.
- Most courts à “no-revival” approach – no reinstatement - Some courts will not permit a modification if the
prior awards. change was anticipated or voluntary. Other courts
- Some courts à “logic of annulment” doctrine – will order will permit modification if spouse acted in good faith.
reinstatement of prior alimony awards. UMDA (Uniform Marriage & Divorce Act) à Can only be
modified upon a showing of changed circumstances so
4. Termination Upon Death - obligations terminate upon substantial and continuing as to make the terms
the death of obligor spouse. unconscionable.
5. Modification Courts CANNOT retroactively modify support orders.

Most States à Alimony can only be modified when there
is a substantial change in circumstances making prior UIFSA (Uniform Interstate Family Support Act)
order unreasonable. - Courts MUST give full faith and credit to support orders
- Some courts will not permit a modification if the from other states.
change was anticipated or voluntary. Other courts - Court CANNOT modify child support order of other state
will permit modification if spouse acted in good faith. unless:
UMDA (Uniform Marriage & Divorce Act) à Can only be 1) Court has jurisdiction to issue an order; AND
modified upon a showing of changed circumstances so 2) Either (a) all parties do not reside in issuing state
substantial and continuing as to make the terms (obligor, obligee, child), or (b) each party has
unconscionable. consented in writing.
- Court has continuing, exclusive jurisdiction over an order
Courts CANNOT retroactively modify support orders. if: (a) state is still residence of one party; OR (b) all parties
consent in a record or in open court.
UIFSA (Uniform Interstate Family Support Act) – Courts
must give full faith and credit to support orders from other I. Child Custody & Visitation
states.
1. Best Interests of the Child Standard
H. Child Support - Used to determine child custody – based on what is best
for the child.
1. Parent’s Legal Obligation – A biological parent is - Court considers various factors and gives great discretion
legally obligated to pay child support (whether or not the to the court.
child was intended or wanted). - Court CANNOT award/deprive custody based on parent’s
lifestyle, values, or religious beliefs, BUT may take into
2. Child Support Guidelines – Federal law requires account if such behavior/conduct endangers the child.
states to set guidelines that: (1) take into account all
earnings and income of the non-custodial parent; AND (2) 2. Parent vs. 3rd Party Custody
are based on specific descriptive and numeric criteria. - Presumed that custody with the parent is in the best
interests of the child.
3. College/Educational Expenses – Some states require BUT may be rebutted if detrimental to the child (in
support for college/continuing education – but a child may some states).
lose the right to payments for continuing education if the - Substantial weight is given to a mature child’s wishes –
child does not follow the obligor parent’s reasonable but not decisive.
instructions. - Court must give great weight to a parent’s determination
of what is best for the child – since parental rights are
4. Termination Upon Death constitutionally protected.
- Most States à Child support obligations terminate upon
death, but deceased’s estate remains liable for past due
payments.

3. Joint Custody – Only for parents who can cooperate. J. Rights of Unmarried Cohabitants
4. Presumption of Parental Fitness 1. Agreements

- Parents are presumed fit to care for their children. An agreement for division of property between unmarried
- May be rebutted by clear and convincing evidence of cohabitants may be express or implied.
conduct endangering the child (abuse, neglect, etc.). - Express (oral or written) – enforceable except if
based on sexual relations.
5. Parental Visitation Rights - Implied – court may find implied in fact contract if
- Parents not granted custody ARE entitled to reasonable comingled funds during relationship.
visitation rights – UNLESS court finds (after a hearing) that
visitation would seriously endanger the child’s physical, 2. Division of Property
mental, moral, emotional health. The party who has title retains solo ownership of property
- Payment of child support is independent from the right to UNLESS:
visitation – interference with visitation does not suspend a) Contract theory (see above); OR
obligation to pay child support. b) Equitable remedy theory (see below).
i. Resulting Trust – another party gave money
6. 3rd Party Visitation Rights to acquire property with intent to have
- Courts must give great weight to parent’s choice of what ownership.
is best for the child. ii. Constructive Trust – one party obtained title
- Some states permit visitation to 3rd parties who have through wrongful conduct.
substantial relationship with the child (when in the best iii. Quantum Meruit – unjustly enriched by the
interests of the child). services provided by another – fair market
BUT, the 3rd party must: (1) overcome a presumption value damages awarded.
that a parent acts in the best interests of the child;
AND (2) show that a denial of visitation poses a risk 3. Putative Spouse Doctrine
of harm to the child. Protects the financial and property interests of a person
who:
7. Relocation - Custodial parent’s relocation with the child 1) Entered into a void/voidable marriage; AND
is permitted if: (1) in good faith; AND (2) in the best 2) Believed in good faith that marriage was valid.
interests of the child.
- Court must balance à effect on visitation vs. benefits of A putative spouse is entitled to the same marital property
relocation. rights as a legal spouse.
8. Modification K. Unmarried Parents & Their Children
- Allowed ONLY IF there is a substantial change in
circumstances.
- Some states prevent modification within certain 1. Paternity
time of the initial determination. Can be established by:
- In some states a non-marital cohabitant change is a) birth certificate;
sufficient. b) legal presumption;
- Custody determinations CANNOT be retroactively • a child born during marriage is presumed
modified. the marital child of the husband (may be
- The court that had jurisdiction over the original order rebutted).
retains continuous and exclusive jurisdiction to make c) unmarried parent’s voluntary sign an
modifications. acknowledgement of paternity;
d) unmarried biological father’s successful challenge
PKPA – Court may modify an order from another state of a presumption;
only if: (1) it had jurisdiction to make initial determination; e) paternity suit; OR
AND (2) issuing state no longer has jurisdiction or declined f) paternity by estoppel – actions by assuming
to exercise it. paternity responsibilities establish substantial
UCCJEA – Court may modify an order from another state relationship (paid support + held himself out as the
only if: (1) it had jurisdiction to issue initial order; AND (2) father).
issuing state determines it no longer has jurisdiction or
current state is more appropriate or court determines all
parties do not reside in issuing state.

2. Unmarried Biological Father’s Rights to a interaction with mother during pregnancy, paid for medical
Relationship with the Child expenses).
- Consent of a parent is NOT required when: (a)
Protected under the Due Process Clause only if: surrendered to an adoption agency; (b) incompetent due to
1) assumed parental responsibilities; AND mental illness; (c) abandoned child; OR (d) permanently
2) established a substantial parent-child relationship. neglected child.
- Consent for adoption CANNOT be withdrawn after the
Entitled to notice of adoption if: adoption decree is entered.
a) his right is protected under US Constitution; OR - Consent may be withdrawn prior to adoption decree if in
b) acted consistent with state’s guidelines for the the best interests of the child,
putative father registry.
3. Jurisdiction – Same as child custody determination
L. Parent, Child, & State under UCCJEA.
1. Right to Control Upbringing and Education 4. Visitation for Biological Parents

- Is a fundamental right. - Most States à Not allowed because it would interfere
- Courts or State agencies cannot interfere UNLESS well- with the adoptive parents’ rights and conflict with the
being of the child is endangered. purpose of adoption.
- A parent may provide religious education or deny - Some States à Permitted if in the best interests of the
education because of religious beliefs. BUT, all children child.
must attend school at least through the 8th grade.
N. Alternatives to Adoption
2. Child’s Medical Care
Surgery – parental consent is required, except in an 1. Artificial Insemination & In Vitro Fertilization
emergency or where prescribed by statute. Artificial Insemination: Is the introduction of sperm into
- Some states DO NOT honor if a parent refuses child female’s uterus for achieving pregnancy by means other
medical treatment based on religious belief. Courts than sexual intercourse.
consider whether strong facts in favor of treatment exist In Vitro Fertilization: Fertilization by combining egg and
and weigh the risk and benefit of the treatment. sperm in laboratory, and transferring it to the female’s
uterus.
3. Loss of Consortium Clams – only available to married - The husband is presumed to be father if: (1) he
couples. consented in writing; AND (2) a medical doctor performed
the procedure.
4. Intra-Family Lawsuits & Immunities
- Common Law à Spouses could not sue each other and 2. Surrogacy Arrangements
parent-child suits were not allowed. Surrogacy: When a woman agrees to carry a pregnancy
- Modern View à Interfamily immunity abolished. for another person or couple, who will become the child’s
parents.
- Some States à Surrogacy is NOT allowed, and
M. Adoption agreement is void as against public policy.
- Other States à Courts will only enforce agreement under
1. Adoption certain conditions, such as prior court approval of the
- Severs the biological parent’s legal rights and surrogacy agreement.
responsibilities for the child.
- In most states, biological parents lose right to visit the
child after adoption.
- Does not terminate inheritance right of the child if
adopted by blood relative (some states).
2. Consent to Adoption
- Generally, both parents’ consent is required.
- For non-marital children à the father’s consent is only
required when he assumed parental responsibilities (i.e.

REAL PROPERTY
A. Present Estates
2. Joint Tenancy – created when 4 unities (TTIP) are
1. Fee Simple Defeasible – express conditional language, present à Unity of (1) time, (2) title (same instrument), (3)
can be terminated upon the occurrence/non-occurrence of interest, AND (4) possession.
an event or condition. - MUST have clear express intent to create joint
Fee simple determinable – possibility of reverter – words tenancy with right of survivorship (i.e. “as joint
of duration (so long as, during, while) – automatically tenants”, “right of survivorship”).
terminated if a specific condition occurs.
Fee simple subject to a condition subsequent – right of Severance – When one joint tenant unilaterally transfers
re-entry – only terminates if grantor affirmatively exercises his ownership interest in the property, the joint tenancy is
his right of re-entry. severed. Tenants then hold the property as tenants in
Fee simple subject to executory interest – reserves a common.
future interest in a 3rd party (not the grantor or his heirs). - If there are more than two joint tenants, the joint
tenancy remains, but only among other joint
2. Life Estate - conveyance where life tenant is entitled to tenants.
possession of property during life, and upon death - If a joint tenant takes out a mortgage on her
property transfers to another party (specified by deed). interest à (a) does not sever in lien theory
- The life tenant is responsible for ordinary expenses and jurisdiction, BUT (b) severs in title theory
taxes for the property during lifetime. jurisdiction.
- Life tenant CANNOT commit waste (causing property to
decrease in value). 3. Co-Tenant’s Entitlement to Rent/Reimbursement
Rent: An out-of-possession co-tenant DOES NOT have
3. Statute of Limitations (SOL) the right to receive rent, unless wrongfully ousted. In-
- Interest in fee simple determinable/subject to condition possession tenant is NOT liable for rent for his use of
subsequent lasts through the applicable SOL period. entire property.
- Action for possession may be brought anytime within - BUT, if property is rented to a 3rd party, co-tenant
SOL period. is entitled to fair share of rent paid by 3rd party.
Reimbursement for Repairs: Co-tenant is entitled to
B. Future Estates reimbursement for the costs of necessary repairs, unless
wrongfully ousted.
Improvements: Co-tenant is NOT entitled to
Possibility of reverter – if condition occurs, grantee’s
reimbursement for improvements to the property (unless
interest is automatically terminated and vests in the
agreement).
grantor.
Right of re-entry – the right to re-enter and take the – BUT the improving co-tenant is entitled to
property if grantor exercises that right upon the occurrence downside risk/upside gain when property is sold.
of a specified condition.
Life estate – reversion (grantor), remainder (3rd person). D. Landlord & Tenant Issues
Vested remainder – a future interest given to an
identifiable person with no conditions. 1. Leasehold Interests – Lease grants a tenant the
Contingent remainder – a future interest conditioned present possessory interest in use of his land for a
upon the occurrence/non-occurrence of specific event. limited period.
(1) Tenancy for Years – last for fixed period,
C. Co-Tenancy automatically terminated after the period.
1. Tenancy in Common – Default estate created when (2) Periodic Tenancy – continues for a specific period
land is conveyed to two or more people UNLESS: (weekly/monthly) until terminated by proper notice.
a) Express language stating that the parties have a - Is created: (a) expressly; (b) by implication, if rent
paid specific period; OR (c) by law (tenancy for
survivorship right, create joint tenancy; OR
b) If conveyed “as husband and wife” creating years remains after termination of the period,
tenancy by entirety. lease invalid).
- Each owner owns an undivided interest in the property, - Termination à written notice at least a full period
and has the right to use and enjoy the entire property. in advance (if yearly, 6 months’ notice required).
- Interest passes by bequest or intestacy.

(3) Tenancy at Will – continues until either party - In residential leases, landlord has duty to repair common
terminates it, and usually created by express agreement. areas, duty to warn the latent defects that create a risk of
- Termination à notice + reasonable time to quit serious harm that the landlord knows/should know of.
premises. In some states, no notice is required. In commercial leases, landlord has NO duty to repair.
2. Duty to Pay Rent – runs with the land. 6. Landlord Duty to Mitigate Damages
If tenant remains on land + not pay rent, landlord can: Common Law à NO duty to mitigate damages.
a) Evict the tenant; OR Most States à Impose a duty for landlord to take
b) Allow the tenant to remain on the land and sue for reasonable steps to mitigate losses (i.e. attempting to
damages. lease property to another).
If tenant abandons the property, landlord may have to - Damages that could be avoided will not be
take reasonable steps to mitigate losses (depending on awarded.
state law).
7. Lease Assignments – when a tenant transfers all his
3. Hold-Over Tenants remaining lease interest.
If a tenant holds-over, the landlord may: - Leases may be freely assigned UNLESS lease states
a) evict the tenant; OR otherwise.
b) hold the tenant over. - Can never be for longer period than remaining lease
term.
If holds tenant over: - Landlord waives the right to enforce a provision
- implied month to month tenancy is created with prohibiting assignment if he accepts rent from assignee.
terms identical to original. - Assignee is liable to the landlord for rent/all other
- if tenant is informed before the end of the lease of covenants that run with the land b/c privity of estate.
a higher rent, higher rent would apply. - Original tenant remains liable for rent b/c privity of
- Duration: Modern view à A month-to-month contract.
tenancy is created. Under CL à equal to original
tenancy period. 8. Subleases – when a tenant transfers only some of his
remaining lease interest.
4. Landlord Duty: Implied Warranty of Habitability - Tenant may freely sublet UNLESS provision in lease
- Implied in every residential lease to provide a place to states otherwise.
live that is habitable – reasonably suitable for human - Sublessee is NOT liable to the landlord for rent or other
needs. covenants b/c no privity of estate.
Some courts impose warranty of habitability for - Original tenant remains liable for rent b/c privity of
commercial leases in limited circumstances. contract.
- If warranty breached, tenant may: (a) move out +
terminate lease; (b) withhold/reduce the rent; (c) repair the 9. Surrender – an agreement to end a lease early.
issue and deduct the cost; OR (d) remain on the premises - Landlord must clearly accept surrender of lease (unless
and sue for damages. agreement states otherwise).
- An attempt to end the lease early (such as leaving the
5. Landlord Duty: Constructive Eviction keys) DOES NOT constitute surrender unless landlord
- Every lease includes an implied warranty of quiet clearly accepts.
enjoyment – which prevents a landlord from interfering - If landlord does not accept surrender, tenant is deemed
with the tenant’s quiet enjoyment and possession of the to have abandoned and is liable for damages.
property.
- Constructive eviction occurs when:

1) landlord breached a duty to tenant;
2) breach caused a loss of the substantial use and
enjoyment of the premises;
3) tenant gave landlord notice of condition;
4) landlord failed to remedy the condition within a
reasonable time; AND
5) the tenant vacated the premises.
- If constructive eviction, tenants may terminate lease and
seek damages.

E. Covenants & Equitable Servitudes F. Easements and Licenses
1. Real Covenants – a non-possessory interest in land Easement = a non-possessory interest in the use of
that obligates the holder to either do something or refrain someone else’s land.
from doing something.
Remedy = damages 1. Easement by Grant – Requires: (1) writing signed by
To enforce the benefit: (1) writing satisfying Statute of the owner of the burdened property; (2) reasonably identify
Frauds, (2) intent that covenant run with the land, (3) the parties and the land; AND (3) indicate grantor’s intent
vertical privity – when successor holds entire interest held to convey the easement.
by predecessor, AND (4) touch & concerns the land
(makes the land more useful or valuable). 2. Easement by Implication – Requires: (1) a single tract
To enforce the burden: (1)-(4) above + (5) horizontal of land divided by a common owner; (2) a pre-existing use
privity between original parties (the two parties shared by the owner is established prior to division; (3) continuous
some interest in the land independent of the covenant), and obvious indication that it was meant to be permanent;
AND (6) the new owner must have notice of the covenant (4) the use affects the value of the land conveyed; AND (5)
– (a) actual, (b) record, or (c) inquiry (inspection). the use is reasonably necessary for the owner’s use and
enjoyment of the land conveyed (not absolute necessity).
2. Equitable Servitudes – a covenant that equity will - Scope of easement = prior use.
enforce if the burdened estate had notice of the covenant
(regardless of whether it runs with the land). 3. Easement by Necessity – Requires: (1) land owned by
Remedy = injunctive relief one owner is subdivided; AND (2) access to easement is
To enforce the benefit: (1) writing satisfying Statute of essential to the use of the property b/c no ingress or
Frauds, (2) intent for servitude to be enforceable, AND (3) egress.
touch and concerns the land (makes land more useful or
valuable). 4. Easement by Prescription – Landowner fails to bring
To enforce the burden: (1)-(3) + (4) the new owner must an action against the users for the period of the statute of
have notice (a) actual, (b) record, or (c) inquiry limitations for real property actions.
(inspection). Elements: The Possessor’s use must be (1) open and
notorious, (2) continuous, (3) hostile, AND (4) for the
3. Common Scheme or Plan Doctrine statutory period.
- Court will imply reciprocal restrictive covenants on - Scope = actual usage during statutory period.
parcels in a subdivision sold by a developer ONLY IF:
1) developer had common scheme or plan that all 5. Termination
parcels would be subject to the restriction at the An easement may be terminated by:
time sold; AND a) Estoppel (when the servient estate owner
2) land owner had notice of the restriction – (a) reasonably relies on assurance that easement will
actual, (b) record, or (c) inquiry – obvious from not be enforced);
looking at the subdivision. b) Termination of the necessity;
c) Involuntary destruction of the servient estate;
- Reciprocal negative servitudes only apply to negative d) Condemnation of the servient estate;
covenants and equitable servitudes. e) Written release;
f) Abandonment (physical action show intent to
4. Condos, Co-ops, & HOA’s never use the easement again);
- Under Rest. 3rd, a Common Interest Community (“CIC”) g) Merger of the properties (if separated again it does
is a development/neighborhood of individually owned lots not revive easement); OR
which have an obligation to: (a) pay for/contribute h) Prescription.
maintenance of property held in common; OR (b) pay
dues or assessments to an association that maintains 6. Licenses – the privilege to use another’s land in a
the neighborhood and/or properties. particular way (is NOT an interest in land).
- Typical CIC’s = condos, co-ops, and HOA’s - Need not be in writing.
- Residents and successive owners are subject to - Revoked at any time by manifestation of licensor’s intent
recorded obligations (restrictive covenants) that run with to do so, BUT licensor can be estopped form revoking
the land. license if licensee invested substantial money/labor in
reasonable reliance.

7. Profit – gives the holder the right to take natural I. Land Conveyances
resources such as petroleum, minerals, timber, and wild
game from the land of another. 1. Requirements for a Valid Land Sale Contract
The contract MUST:
G. Fixtures 1) Be in writing (satisfies Statute of Frauds);
2) Describe the property;
Fixture – Is an item affixed to the land/dwelling that 3) Identify the parties;
becomes part of the land. 4) Contain the purchase price; AND
- Whether an item is fixture is determined by 5) Be signed by grantor/grantee (depending on
objective intent. whom contract is being enforced against).
Objective Intent: Courts consider the (1) nature of the 2. Warranty of Marketable Title – The Seller has the duty
item, (2) way it is attached, (3) damage that would result if to convey marketable title to a buyer.
removed, and (4) extent to which the item is adapted. - Marketable title – title must be free from any cloud or
subject to any adverse claim.
Trade Fixture Exception – An item attached for tenant’s - Title is unmarketable if property has a substantial
trade or business is not a fixture UNLESS removal causes defect, such as: (a) defect in the record chain of title;
substantial damage to the property. and/or (2) encumbrances such as mortgage, liens,
– But, the item may become fixture if it’s not restrictive covenants, easement, claim of adverse
removed before the end of the lease term. possession, or zoning violation (zoning restrictions do not
make title unmarketable).
H. Adverse Possession - If seller cannot convey marketable title at closing, the
buyer may withdraw without penalty.
1. Adverse Possession – Allows a possessor of land to - A purchaser may waive it b/c the benefit is for the
acquire title to that land (same title the original owner purchaser. If the buyer waives, seller cannot cancel
possessed). contract.
- Damages for breach = the reduced value of land
Elements – The possession must be: - Merge Doctrine: Once the deed is accepted & delivered,
1) Continuous for the statutory period; the land sale contract merges with the deed. Result is that
2) Open and notorious – as would put a true owner any rights to sue under the contract are extinguished, and
on notice; buyer may only sue upon the deed.
3) Exclusive;
4) Actual – possess the land as a true owner would; 3. Doctrine of Equitable Conversion – Doctrine splits
AND ownership between buyer and seller once contract of sale
5) Hostile and under claim of right (without the true is signed.
owner’s consent). – Buyer has equitable ownership of the property.
– Seller has legal ownership, and holds property in
2. Aggregation/Tacking – Adverse possessors in privity trust for the buyer.
(voluntarily transferred by deed) may aggregate their years
spent possessing the property to meet the statutory period. 4. Risk of Loss
Most States à risk of loss transfers to the buyer upon
3. Constructive Adverse Possession – If a person takes signing the contract.
possession of a portion of land under color of title (invalid Minority States à Seller bears risk of loss unless buyer
deed), the adverse possession extends to the entire has possession/title to property at time of loss.
portion of land described in the deed/title.
5. Time for Performance
- Even though a land sale contract may specify a closing
date, the time for performance may be changed if
requested by one of the parties.
– Exception: If contract contains a “time is of
essence” clause.
o If buyer fails to perform on closing date, it
is deemed a material breach and the
seller may keep the down payment as
liquidated damages.

6. Specific Performance – Real property is deemed 3. Quitclaim Deed – Contains NO warrantees. The
unique, and specific performance is an appropriate remedy grantor is NOT liable for any defects in title.
(unless property has been sold to a Bona Fide Purchaser
without notice). 4. Estoppel by Deed – If grantor conveys title to real
property before he owns it, the title will automatically vest
7. Home Builder’s Implied Warranty – Protects in the grantee as soon as grantor acquires title.
purchasers of newly built homes against latent defects,
AND warrants home is safe and fit for human habitation at 5. Chain of Title – The chain of title shows all transfer for
the time of sale. a piece of land (indexes organized by names of grantors
Latent defect = defect that could not have been and names of grantees).
discovered by the reasonable inspection. Wild deed = A deed not recorded properly, and thus not
Subsequent Purchasers: discoverable in the chain of title. A wild deed DOES NOT
Some States à require privity of contract with home put subsequent purchasers on constructive notice of a
builder. land transfer.
Other States à Warranty applies b/c buyer is in same
vulnerable position. 6. Recording Statute & Notice
Notice Statute Jurisdiction – a subsequent bona fide
J. Title to Real Property purchaser (no notice + pays value) will prevail over a prior
grantee that failed to record.
1. Deed Requirements Race Statute Jurisdiction – whomever records first
Valid Deed – A valid deed MUST: prevails (notice is irrelevant).
1) be in writing (satisfy Statute of Frauds); Race-Notice Statute Jurisdiction – a subsequent bona
2) identify land and parties; AND fide purchaser (no notice + pays value) is protected ONLY
3) indicate the grantor’s intent to convey land. IF he records before the prior guarantee.
Intent to convey – Intent is presumed upon the recording Notice = (a) actual notice; (b) constructive (record) notice;
of a deed. BUT, intent will not be found if: (a) grantor or (c) inquiry notice (notice of what a reasonable
expressly reserves the right to revoke the deed; OR (b) inspection of land would provide).
gives an instruction to only deliver the deed upon grantor’s
death. 7. Bona Fide Purchasers (BFP)
Requirements:
When a deed is unconditional on its face and given to 1) takes real property without notice of a prior
grantee, any additional oral conditions are NOT valid. instrument; AND
- BUT, if same deed is given to a 3rd party (i.e. to 2) pays valuable consideration.
be held in escrow), the additional conditions create
a conditional delivery. - A donee, heir, or devisee is NOT a BFP.
2. General Warranty Deed – Six covenants of title. Shelter rule – One who purchases land from a BFP
Present covenants (at time of conveyance): receive the same status and rights as the BFP.
1) Seisin – rightful owner;
2) Right to convey; and K. Mortgage
3) Covenant against encumbrances.
Future covenants: 1. Requirements for a Valid Mortgage
1) Warranty – to defend against any 3rd party claims The mortgage must be: (1) in writing, (2) signed by the
to title; party to be charged, AND (3) reasonably identify the
2) Quiet enjoyment – to not be bothered by a 3rd parties and the land.
party’s claim to title; and
3) Further assurances – to do whatever is 2. Purchase Money Mortgage
reasonable to perfect title. - Used by the buyer (the borrower) to purchase property,
and the seller is the lender who secures a mortgage on the
Common Law à present covenants were not enforceable property.
by remote grantees. - The holder of the mortgage has priority over all other
Some States à will enforce such covenants against junior and senior mortgages.
encumbrances if the remote grantee did not have notice of
the encumbrance.

3. Future Advance Mortgage L. Zoning
- Is a loan by which the lender may provide future
payments under the original loan. 1. Zoning Ordinances and Laws
- If the lender is obliged to make future payments, all - Land-use regulations are allowed when it reasonably
payments are part of original loan and have priority. protects the health, safety, morals, or general welfare
- If the future payment is optional, that future payment of the community.
DOES NOT have priority over liens recorded before the
payment is made. 2. Variance – An exception to a zoning ordinance.
Two types à (i) use variance, and (ii) area variance.
4. Deed of Trust – Similar to a mortgage but involves 3
parties à (1) borrower, (2) lender, and (3) 3rd party who A variance application may be granted if:
holds title of property as trustee until the loan is paid off. 1) Property owner shows he will suffer hardship
because of the ordinance; AND
5. Assumption of a Mortgage – may be 2) Variance will not damage or harm the public
expressed/implied. welfare.
- Express Mortgage Assumption = express agreement.
- Implied Mortgage Assumption occurs when: (1) no 3. Doctrine of Previous Non-Conforming Use
express agreement; (2) grantee pays the seller only the - A landowner may continue to use his land in violation of a
equity in the home; AND (3) grantee continues to make later enacted zoning law.
payments to the lender on the balance of the mortgage. - If the prior use was originally legal, a subsequent zoning
law will NOT bar the continued use.
6. Assumption vs. Transfer Subject to a Mortgage - Insubstantial changes and reasonable alterations to
- If buyer takes real property subject to a seller’s mortgage, repair the property are PERMITTED.
he is not personally liable on the mortgage. - Substantial changes to the property are NOT ALLOWED.
– BUT, a duly recorded mortgage remains on the - The non-conforming use MUST be continuous, otherwise
land and mortgagee may foreclose the land. it will no longer be protected.
- If buyer assumes the mortgage, the buyer is primarily
and personally liable on the mortgage (the seller M. Conflict of Laws
remains secondary liable).
1. Real Property Cases
7. Foreclosure
Apply the state law where real property at issue is
- Extinguishes junior mortgages. All prior recorded
located (the situs rule) for cases involving title or sale of
mortgages are NOT affected.
real property.
- Proceeds from a sale are used to pay off debts in this
- Under Rest. 2nd Approach, it is presumed that
order:
situs state has the most significant relationship.
1. Attorney fees and expenses associated with the
sale. - If land is merely incidental to a contract (i.e.
brokerage contract, mortgage agreement), apply
2. Debts owed to mortgagee (the lender).
traditional choice of law rules.
3. Any amount left goes to the mortgagor.
- A mortgagee may seek deficiency judgment against
debtor if the proceeds are insufficient to satisfy mortgage
loan.
8. Transfer of a Mortgage Note:

- Some States à require that the mortgage note be
assigned along with the mortgage.
- Other States à the note automatically follows a
mortgage when it is properly assigned (even without notice
to the mortgagor).
- A mortgagor is NOT liable to an assignee of the note (for
any payments made to the assignor) if mortgagor pays
assignor and never received notice of assignment.

SECURED TRANSACTIONS
A. Scope of Article 9 of the UCC Consumer Goods = Goods purchased primarily for
personal, family, or household purposes.
Article 9 of the UCC governs any transaction regardless Proceeds = The following types of property:
of its form that creates a security interest. a) Acquired upon the sale, lease, or other disposition
of collateral;
1. Substance Over Form Controls b) Collected/distributed on account of collateral;
Substance over form controls, as to whether a security c) Rights arising out of collateral;
interest is created. How the parties classify the d) Claims arising out of the loss of collateral; OR
transaction is immaterial. e) Insurance payable by loss of collateral (a check
given exchange for collateral is “cash proceeds”).
2. Title to Collateral is Immaterial Chattel Paper = A record that evidences: (1) a monetary
- Art. 9 of the UCC applies to a secured transaction obligation; AND (2) either (a) a security interest in specific
regardless of whether title to the collateral is in the name goods or specific goods with software, or (b) a lease of
of secured party. specific goods.
- A seller CANNOT retain or reserve title to goods that Monetary Obligation = An obligation to pay money that is:
have been delivered or shipped. Any attempt to (a) secured by the goods; OR (b) owed under a lease of
retain/reserve title is limited to a reservation of a the goods.
security interest.
C. Attachment and Perfection
3. Lease vs. Security Interest
- Courts look at the economic realities to determine if a To obtain a valid security interest in collateral, a creditor
lease is actually a security interest. MUST: (1) attach the collateral; AND (2) perfect its
- A “lease” will be deemed a security interest if: interest.
1) A commitment to make payments for a term
exists; AND 1. Attachment – Secures the creditor’s rights in collateral.
2) Either: Attachment requires:
a) The original term >= remaining economic life 1) Creditor extends value to the debtor;
of the goods; 2) Authenticated record or security agreement
b) Lessee must renew the lease for the (authenticated by debtor + reasonably identify
remaining economic life of goods or is collateral); AND
forced to take ownership; 3) Debtor has rights in the collateral.
c) Lessee has option to renew the lease for the
remaining economic life of goods for no 2. Perfection – Gives notice of the creditor’s rights in the
additional consideration; OR collateral.
d) Lessee has the option to become the owner Perfection is obtained by:
of goods for no additional consideration. a) Filing a financing statement with the Secretary
of State (must identify collateral and security
B. Applicability and Definitions interest); OR
b) Taking possession or control of the collateral.
Types of Collateral
Accounts = A right to payment of a monetary obligation. 3. Financing Statements
Deposit Accounts = An account maintained with bank - An effective financing statement MUST:
(can only be perfected by control). 1) Provide the name of the debtor and secured
Inventory = Goods which are (a) leased, (b) held for party (if debtor is an organization must provide
sale/lease or to be given under contract of service, (c) official registered name);
given under a contract of service, OR (d) consisting of raw 2) Indicate collateral covered; AND
materials, work in process, or materials used/consumed in 3) Be filed by a person authorized by the debtor.
a business. - Minor errors are ok UNLESS the error makes the
- Inventory DOES NOT include farm products or statement seriously misleading.
goods held only for repair. - Insufficient name of debtor = seriously misleading
Equipment = Goods other than Inventory, farm products, UNLESS statement is discoverable in a search of the
or consumer goods. records of the filling office under debtor’s correct name.

4. Purchased Money Security Interests (PMSI’s) 3. Control of a Deposit Account – can only be perfected
A PMSI is created when a creditor extends value to the by control.
debtor for the purpose of enabling the debtor to acquire A secured party has “control” if:
rights in collateral. a) The secured party is the bank where the account
– PMSI in consumer goods à automatic perfection. is maintained;
– PMSI in non-consumer goods transaction à b) The debtor, secured party, and bank have agreed
takes priority if creditor files a financing statement in an authenticated record; OR
before/within 20 days after debtor receives delivery c) The secured party becomes the bank’s customer
of collateral. with respect to the deposit account.
5. Automatic Perfection for Certain Assignment of 4. Future Advances – A security agreement may provide
Accounts that the collateral secures future advances whether or not
A security interest is automatically perfected upon the advances are mandatory.
attachment of an assignment of accounts if it does not
transfer a significant part of the outstanding account E. Protection of a Buyer of Goods
of the assignor.
1. Transfers of Collateral – a/k/a Nemo Dat Quod Non
D. Validity of Security Agreements & Rights of Habet Rule
Parties - A buyer acquires ALL title that the seller had or had
power to transfer.
1. Security Interest in the Sale of Collateral & - Thus, a seller who did not have title to goods CANNOT
Identifiable Proceeds transfer title to a buyer (unless an exception applies).
- A security interest will continue despite any sale, lease,
or other disposition of the collateral. 2. The Shelter Principle
- A perfected security interest will attach any identifiable Under the shelter principal, if a buyer acquires property
proceeds from the disposition of collateral. free of a security interest, then any subsequent transfer
- An interest in proceeds will become unperfected on the is also free of the security interest.
21st day UNLESS:
a) Proceeds are identifiable cash proceeds; 3. Buyers in the Ordinary Course of Business – take
b) Security interest is perfected when it attaches to free of a security interest.
the proceeds or within 20 days; OR
c) If ALL of the following are satisfied: (i) original A buyer in the ordinary course of business is a person:
collateral was perfected by filing; (2) proceeds are 1) that buys goods in good faith;
collateral that may be perfected by filing; and (3) 2) without knowledge that the sale violates the rights
proceeds are not acquired with cash proceeds. of another person; AND
3) purchases in the ordinary course from a merchant
2. Consignment – Treated like a PMSI in inventory. (a person in the business of selling goods of that
A consignment is a transaction in which: kind).
1) A person delivers goods to a merchant for the
purpose of sale; - Thus, if a person who entrusts goods to a merchant (who
2) Merchant deals in goods of the kind, is not an deals in goods of that kind), then the merchant has power
auctioneer, and is generally not known to be to transfer to a buyer in the ordinary course of business all
substantially engaged in selling goods of others; rights of the entruster.
3) Value of goods is $1,000 or more at the time of
delivery; 4. Consumer-to-Consumer Rule
4) Goods are not consumer goods immediately Buyers of consumer goods take free of a security interest if
before delivery; AND the goods are bought:
5) Transaction does not create security interest. 1) without knowledge of the security interest;
2) for value;
3) from a consumer who primarily bought goods for
personal/family/household purposes; AND
4) before the filing of a financing statement.

F. Priorities property; and (iv) provides the name
of a record owner (if the debtor does
1. Priority for Perfected & Unperfected Interests not have an interest of record in the
Perfected Interest vs. Unperfected Interest: Perfect real property).
interest has priority over conflicting unperfected interests.
Unperfected Interest vs. Unperfected Interest: The first G. Accessions
creditor to attach will prevail.
Perfect Interest vs. Perfected Interest: Rule of “first in Accessions – Goods that are physically united with other
time, first in right” controls – first creditor to perfect has goods, but retain its separate identity.
priority. - Security interest continues.
- If perfected when the collateral became an
2. Priority of Liens Arising by Law accession, its remains perfected.
- Possessory liens by law have priority over a security in
goods (unless the lien is created by a statute that states Commingling – Two goods that are each subject to a
otherwise). different security interest.
- A possessory lien is an interest that: - General priority rules govern (except that an
1) secures payment of an obligation for services or interest perfected by compliance with the
materials furnished by a person in ordinary course requirements of a certificated-of- title statute take
of the person’s business; priority over all other interests).
2) is created by statute or rule of law in favor of the
person; AND H. Secured Party’s Rights & Remedies Upon Default
3) whose effectiveness depends on the person’s
possession. 1. Secured Party’s Right to take Possession of
Collateral
3. Judgment Liens - After default, a secured party may:
- Judgment lien creditors have priority over conflicting 1) take possession; and
security interests ONLY IF the person became a judgment 2) without removal, render equipment unusable and
lien creditor before the security was perfected. dispose of collateral on a debtor’s premises.
- Priority also extends to future advances secured more
than 45 days after become lien creditor UNLESS the - The secured party may proceed pursuant to:
advance is made without knowledge of the lien. a) judicial process; OR
- BUT, this rule does not apply to a buyer of b) without judicial process (if without a breach of the
accounts or a consignor. peace)
4. Fixtures 2. Secured Party’s Right to Dispose of Collateral

- An ownership interest in real property has priority over
conflicting security interests in fixtures. - After default, a secured party may sell, lease, or
BUT Two Exceptions: otherwise dispose of the collateral in any reasonably
o Exception #1 - Perfected PMSI in Fixtures: commercial manner.
1) debtor has an interest of record or in
possession of the real property; Notice: Must send an authenticated notification of the
2) ownership interest arose before disposition to the debtor and secondary obligor.
goods became fixtures; AND – Secured party will be liable for damages for
3) perfected before or within 20 days failing to provide notice even if the debtor had
thereafter. actual knowledge of the disposition.
o Exception #2 – Fixture Filing:
1) Filing of a financing statement that Disposition at Foreclosure Sale:
covers goods that are or will become 1) transfers all of the debtor’s rights in the collateral
fixtures; to a transferee for value;
2) Satisfies all general rules for 2) discharges the security interest; AND
financing statements; AND 3) discharges any subordinate security interests.
3) Satisfies the rules for a real property
filing: (i) state it covers fixtures; (ii)
filed in real property records; (iii)
sufficient description of the real

- A transferee that acts in good faith takes free of the rights 2. Redemption – A debtor has right to repay and reclaim
of the debtor, even if the secured party fails to comply with property held by the secured party.
the rules governing disposition. - To redeem collateral, the debtor must:
1) fulfill all obligations; AND
Commercially Reasonable Sale: Every aspect of the 2) pay reasonable expenses and attorney’s fees.
disposition must be commercially reasonable. - Debtor may redeem any time before a secured party: (a)
- Deemed commercially reasonable by law if made: collected the collateral; (b) disposed of or entered into a
a) in the usual manner on any recognized market; contract to dispose collateral; OR (c) accepts collateral in
b) at the current price in recognized market at the full or partial satisfaction of the debt.
time of disposition; OR
c) in conformity with reasonable commercial practice 3. Deficiency Judgments
among dealers in similar property.
For Consumer Goods Transactions
Secured Party’s Purchase of Collateral: The secured - Left for the court to determine.
party may purchase collateral at: - Some States à Absolute Bar Rule – bars collecting any
a) a public sale; OR deficiency.
b) a private sale ONLY IF collateral is customarily - Other States à Rebuttable Presumption Rule –
sold on a recognized market or subject to standard presumed that the proceeds equal the total debt owed
price quotation. (unless secured party proves otherwise).
3. Right to Collect Directly from an Account Debtor For Non-Consumer Transactions:

- A secured party has the right to collect a debt directly If a debtor places a secured party’s compliance at issue
from account debtor. and secured party fails to prove disposition was proper,
- Once the account debtor receives notification of an the recovery is limited to:
assignment, the debtor can no longer discharge by a) proceeds of the disposition; OR
payments to assignor (the original creditor). b) the amount that would have been realized had the
- It can only discharge its obligation by payments to secured party complied with Art. 9 (amount of
the assignee. proceeds = the total debt unless proven
otherwise).
I. Debtor’s Rights Upon Default
1. Damages Available to a Debtor for a Secured Party’s

Failure to Comply with Applicable Rules
The secured party is liable for:

- Actual Damages caused by failure to comply with
applicable rules. Includes expectation damages, and
may include loss from inability to obtain or increased cost
of alternative financing.
- $500 in Statutory Damages
- Civil Penalty – For consumer goods, where debtor may
recover (1) damages for loss, AND (2) either the amount
not less than (a) credit service charge, plus 10% of the
principal obligation, or (b) the time-price differential, plus
10% of price.
- Restrain Collection – A court may order or restrain
collection, enforcement, or a proper sale of collateral if
secured party is not proceeding in accordance with the
law.

TORTS
A. Intentional Torts B. Defenses to Intentional Torts
1. Battery – (1) intentional, (2) harmful or offensive contact 1. Consent – may be express or implied through
(reasonable person standard), (3) with the P’s person words/conduct.
(including anything connected to P). - Cannot exceed the bounds of the consent given.
- Intentional = (i) desire to bring about - May be withdrawn any time.
harm/contact, or (ii) knowing harm/contact is - P cannot consent to a crime.
substantially certain to occur.
2. Privilege – Conduct that normally would subject the
2. Assault – (1) intentional act, (2) causes, (3) P to be actor to liability, but is excused under the circumstances.
placed in reasonable apprehension, (4) of imminent
harmful or offensive contact with P’s person. Necessity: D is NOT liable for harm to P’s property if D’s
- P must be aware of D’s act + believe D is able to commit intrusion on the property was (or reasonably appeared to
act. be) necessary to prevent serious harm to a person or
property.
3. False Imprisonment – (1) intentional act, (2) causes, - Applicable only to intentional torts against property.
(3) P to be restrained by physical force or through threats
to boundaries fixed by D (with no reasonable means of Self-Defense/Defense of Others: D is not liable for harm
escape). to P if: (1) D reasonably believed P was going to harm him
- P must be aware or be physically harmed. or another; AND (2) D used only amount of force that was
reasonably necessary.
4. Intentional Infliction of Emotional Distress – (1)
acted intentionally or recklessly, (2) extreme and C. Negligence
outrageous (conduct transcends all bounds of decency),
(3) caused extreme emotional distress, AND (4) P actually 1. Prima Facie Case - (1) duty, (2) breach of duty, (3)
suffered severe emotional distress. actual and proximate cause of injury, AND (4) damages.
– A party must offer sufficient evidence so that a
5. Trespass to Land – (1) intentionally, (2) enters the land reasonable jury could find ALL of the above
physically or by propelling physical objects. elements.
- Intent to trespass not required – only intent to be on the
land is required. 2. Duty Owed
- P must be the possessor of the land at the time of the Andrews view à Duty owed to all foreseeable plaintiffs.
trespass. Cardozo view à Duty owed to foreseeable plaintiffs
- P may recover (a) decrease in value of the property, OR within the zone of danger.
(b) cost to repair property.
- Nominal damages alone are sufficient. 3. Affirmative Duties – There is NO general duty to act
affirmatively, EXCEPT:
6. Trespass to Chattels & Conversion a) Pre-existing relationship between the
Trespass to Chattels: (1) D intentionally interferes with parties (i.e. parent-child, landowner-
personal property (damage, preventing using), AND (2) entrant);
amount of damage is small. b) D placed P into peril;
Conversion – (1) D intentionally interferes with personal c) D has already undertaken to rescue P (but
property (damage, preventing using), AND (2) amount of labile only if increases the risk of harm or
damage is substantial. harm is suffered b/c of the reliance); OR
- P can recover full market value of property. d) Duty imposed by law.
7. Doctrine of Transferred Intent – The intent to harm 4. Reasonable Person Standard – Every person owes a
one party can be transferred when: (1) D intends to duty to act as a reasonable prudent person would act
commit a tort against one particular individual, and (2) if in under the circumstances.
the act another person is injured. – Following community customs & statutory
- Applies to battery, assault, false imprisonment, requirements are relevant, but not dispositive.
trespass to land, and trespass to chattels.

5. Children – Must act as a hypothetical child of similar 9. Landlord’s Duty to Tenants
age, experience, intelligence acting under similar - Landlord generally has NO duty to maintain leased
circumstances. premises (unless provided by law or contract).
- Exception: If engaging in adult activities, the - Under the common law a landlord has NO duty to provide
child has a duty to act as reasonable adult. safe premises so that tenants are safe from criminal acts
of 3rd persons. Under modern view, a landlord has a
6. Professionals – doctors, nurses, lawyers, accountants, duty to take reasonable precautions to protect tenant
engineers, architects. against foreseeable attacks.
- Duty to act with knowledge and skill as an average
member of that profession participating in a similar 10. Negligence Per Se – The elements of duty/breach are
community. established when the D breaches a statute.
- If one holds himself out as a specialist, then held to the
standard of an average member of that profession - To use negligence per se:
practicing that specialty. 1) statute’s purpose must be to prevent the type of
- Medical doctor: Must act as an average qualified injury; AND
practitioner under a national standard. 2) P must be in the class of persons the statue seeks
to protect.
7. Land Owner’s/Possessor’s Duty to Entrants
- Some States à Landowner’s/Possessor’s must exercise Two Exceptions:
reasonable care to ALL entrants. (1) Compliance with statute would have been more
- Other States à Duty of care determined by type of dangerous than the violation of it.
person: (2) Compliance was impossible.
§ Undiscovered trespasser – no duty is owed.
§ Anticipated trespasser (without permission, but 11. Res Ipsa Loquitur – May be used when breach
expected) – (1) reasonable care in operations on element is difficult to prove.
the property, AND (2) must warn of or make safe - Plaintiff MUST show:
highly dangerous artificial conditions that land 1) injury is of a sort that typically does not occur in
owner knows of. the absence of negligence;
§ Licensee (social guest, reasonably believes 2) thing/object that caused the injury was in the D’s
permitted to enter) – (1) reasonable care in exclusive control; AND
operations; AND (2) must warn of or make safe 3) negligence was within scope of duty owed to P.
dangerous conditions that land owner knows, but
are not apparent to guest. 12. Causation
§ Invitee (for the owner’s benefit) – The same duty - P must show that D’s conduct was BOTH the actual and
as a Licensee + the duty to make reasonable proximate cause of the injury.
inspections to find and make safe non-obvious - Actual cause = “but for” cause.
dangerous conditions. - Proximate cause = injury must have been
foreseeable to D as a result of breach.
8. Attractive Nuisance
– Landowner/Possessor has a duty to child trespassers to Intervening Cause – Is an act that occurs after breach that
warn of or make safe artificial conditions on his land. Will contributes to the harm. If the intervening cause was
be liable if: unforeseeable, then D is NOT liable.
1) knows (should know) of a dangerous artificial - Intervening causes that are dependent (a natural reaction
condition – likely to cause death or serious bodily to) D’s wrongful acts are usually foreseeable.
injury;
2) knows (should know) children are likely to 13. Eggshell Plaintiff Rule – “Take P as you find P”
frequent the area; - D is liable for ALL harm a plaintiff suffers as a result of
3) children are unlikely to discover the condition or his conduct, even if P suffers from a pre-existing mental or
appreciate the risks; AND physical condition that makes the harm worse than what a
4) the risk of harm outweighs the expense of making normal person might suffer.
condition safe.
- Attractive nuisance doctrine DOES NOT apply if the child
is engaging in an adult activity.

D. Defenses to Negligence Claims iii. It is motivated (in whole or part) to serve the
employer.
1. Pure Comparative Negligence – P’s negligence will Time, place, and purpose test.
reduce his recoverable damages by the percentage of his
own fault. Not Within Scope of Employment: Conduct is NOT
within scope if unrelated and not intended to serve any
2. Partial Comparative Negligence – If P is more than purpose of the employer.
50% at fault, then P’s claim is barred. - BUT see exception below.
3. Contributory Negligence – P claim is barred if he Employer Liability Even If Outside Scope of

contributed to his injury. Employment: An employer will be liable for acts outside
- Exceptions: the scope of employment if:
o D had last opportunity to avoid; OR a) Employer intended the conduct;
o D was reckless b) Employer was negligent or reckless in
selecting, training, supervising, or
4. Assumption of Risk – If P voluntarily assumed a controlling the employee;
known risk, then P’s claim is barred. c) It is a non-delegable duty; OR
– Assumption may be express OR implied (average d) Agent had apparent authority and 3rd
person would appreciate risk). party reasonably relied.
E. Negligent Infliction of Emotional Distress Intentional Torts: Generally outside the scope.
Exceptions:
a) Act was expressly authorized;
Three scenarios where a P can recover:
b) Act was a natural product of agent’s duties; OR
Near Miss Case – (1) negligence by D, (2) foreseeable
c) Motivated by a desire to serve the principal.
risk of physical injury, (3) P in zone of danger, AND (4) P
manifests physical symptoms.
2. Liability for Independent Contractors: Generally, an
Bystander Claim – (1) negligence by D, (2) P is
employer/principal has NO liability for an Independent
contemporaneous witness to a negligent bodily injury
Contractor’s torts.
inflicted on someone close to P (family member), (3) P in
Exceptions:
zone of danger (few states), AND (4) P manifests physical
1) Inherently Dangerous Activities.
symptoms.
2) Non-delegable duty owed by principal.
Pre-Existing Relationship – (1) pre-existing relationship
3) Estoppel (principal holds out contractor as his
between the parties, AND (2) negligent act foreseeably
agent, 3rd party reasonably relied on contractor’s
causes distress. Recovery is rare, and is usually only
skill, and 3rd party suffered harm).
available in egregious situations.
3. Independent Contractor vs. Employee: Primary
F. Respondeat Superior focus is whether the principal had the right to control the
manner and method in which the job was performed.
1. Liability for Agent/Employee’s Torts: Under the
doctrine of respondeat superior, an employer is liable for Courts analyze the following to determine if an employee or
an employee’s negligent acts if the employee was acting contractor:
within the scope of the employment. 1) type of work;
2) pay rate;
Agent acts within Scope of Employment when: 3) who supplied the equipment/tools;
a) Performing work assigned by the employer; OR 4) degree of supervision;
b) Engaging in course of conduct subject to 5) degree of skill required;
employer’s control. 6) was work for the benefit of the employer’s
business;
Scope Factors – Courts analyze these to determine 7) extent of control principal has over work details;
scope of employment: and
i. Conduct is of the kind employee is employed to 8) whether agent/contractor is engaged in a distinct
perform. business.
ii. Occurs substantially within authorized time and
space limits;

G. Liability of Multiple Defendants - UNLESS slander per se à (a) imputing business
integrity or skill; (b) unchastity of an unmarried
1. Joint and Several Liability woman; (c) loathsome disease; or (d) crime of
- If multiple defendants are the proximate cause of a single moral turpitude.
indivisible harm, P may recover the entire amount of
damages from any D. Libel (embodied in some permanent format) – P does not
- Any D who pays more than his share of the damages need to prove special damages, unless statement is not
may bring action against the other Ds for contribution. clear on its face.
2. Doctrine of Alternative Liability – Allows a jury to find 2. Intentional Interference with Business Relations
ALL Ds liable if: (1) multiple Ds are negligent, (2) but it is Plaintiff must prove: (1) valid contract/business
unclear which one caused P’s injuries. relationship; (2) D knew of contract/expectancy; (3) D
intentionally induced other party to breach; (4) breach
3. Doctrine of Joint Enterprise – Allows the negligence occurred; AND (5) P suffered damages.
of one D to be imputed to other Ds if: (1) multiple Ds are
engaged in a common project or venture; AND (2) all Ds 3. Invasion of Privacy Torts
have made an agreement to engage in tortious conduct.
Misappropriation of Name or Picture – (1) D used P’s
4. Doctrine of Market Share Liability – If applicable, all name or likeness; (2) for commercial advantage.
manufacturers (of the product identical to the one that – Newsworthiness is a defense.
harmed P) are liable in proportion to their share of the
market. False Light – (1) D causes widespread dissemination, (2)
Elements: (1) all Ds are potential tortfeasors; (2) products of P’s beliefs, thoughts, or actions, (3) in a false light, (4)
are identical and share the same defect; (3) P unable to that would be objectionable to a reasonable person.
identify which D caused injury through no fault of his own; – If a public figure or matter of public concern à P
AND (4) substantially all manufacturers of the product are must show actual malice (knowledge of falsity or
named as Ds. reckless disregard).
5. Indemnification – A passive tortfeasor can assert its Intrusion of Privacy – (1) D intrudes into private affairs of
claim against active tortfeasor to recover the full amount it P, (2) P has reasonable expectation of privacy, AND (3)
paid to P. intrusion is highly objectionable to a reasonable person.
6. Contribution – D can seek contribution from other Ds if Public Disclosure of Private Facts – (1) D causes
he pays more than his share of liability to plaintiff. widespread dissemination, (2) of truthful private
information, (3) that is highly objectionable to a reasonable
H. Economic Torts person.
– If a public figure or matter of public concern à P
must show actual malice (knowledge of falsity or
1. Defamation
reckless disregard).
Elements:
1) defamatory statement;
4. Intentional Misrepresentation (Fraud/Deceit)
2) of and concerning P made by D;
Plaintiff must show:
3) publication by D to 3rd party; AND
1) Misrepresentation of a material fact;
4) damages.
2) D knew statement was false;
3) Intent to induce P;
Public figures à P must also prove (1) statement was
4) Actual and reasonable reliance by P; AND
false, AND (2) actual malice (recklessness or knowledge
5) Damages.
of falsity).
Private figure + Public concern à P must also prove (1)

statement was false, AND (2) negligence.
Slander (oral defamatory statement) – need to prove

special damages

5. Negligent Misrepresentation
Plaintiff must show: Manufacturing defect = Product differs from others
1) A misrepresentation (false statement of material manufactured and more dangerous than if made properly.
fact); Design defect = If there is a safer, more practical, cost
2) Supplied for the guidance of others in a business effective way to build a product – must balance alternative
transaction; designs available/costs/risks.
3) D knew (or should have known) that the Failure to warn = P was not warned of the risks which
information was supplied to guide P in his were not obvious to ordinary users, but known to the
business transactions; designer/manufacturer. The warning must be proportionate
4) D was negligent in obtaining or communicating the to the risk.
false information;
5) Actual and reasonable reliance by P; AND Commercial Supplier = any person/entity engaged in the
6) False information proximately caused P’s business of selling goods of the type (routinely sells such
damages. goods). Casual sellers and service providers are NOT
commercial suppliers.
6. Public Nuisance – (1) unreasonable interference, (2)
with the health, safety, proper rights, (3) of the community.
– Must show actual damages.
7. Private Nuisance – (1) substantial and unreasonable

interference, (2) with a P’s use or enjoyment of her
property.
– The nuisance must be offensive, inconvenient, or
annoying to a reasonable person.
I. Common Law Strict Liability
1. Domestic Animals – dogs, cats, farm animals.

- Owner will NOT be strictly liable unless he has
knowledge of the animal’s vicious propensities.
2. Wild Animals – Owner is subject to strict liability

regardless of safety precautions.
3. Abnormally Dangerous Activity = (1) not of common

usage in the community, AND (2) creates a foreseeable
and highly significant risk of physical harm (even when
reasonable care is exercised).
- D is subject to strict liability.
J. Strict Products Liability
1. Strict Product Liability – A commercial supplier is

strictly liable for any harm caused by its products.
Elements:
1) Product was defective (manufacturing defect,
design defect, or failure to warn);
2) Product was not altered when it reached P;
3) Caused an injury to P when it was used in an
intended or unintended foreseeable use;
4) Damages (personal injury, property damages –
not solely economic damages); AND
5) D is a commercial supplier who routinely deals in
goods of this type.

TRUSTS & FUTURE INTERESTS
A. Trust Creation
5. Illusory Trusts – deemed invalid.
1. Trust Formation – Elements: - Occurs when the settlor retains significant control over
1) Definitive beneficiary; the trust property indicating lack of intent to create a trust.
2) Settlor with capacity;
3) Intent to create (may be by a promise); 6. Resulting Trusts – implied by law.
4) Trustee named (but trust will not fail only b/c - A resulting trust is implied by law if a trust fails for lack of
trustee fails to act - court will appoint one); a beneficiary.
5) Valid trust purpose; - All trust property returns to the settlor’s estate.
6) Property (trust is not created until it receives valid
property, does not have to be contemporaneous 7. Discretionary Trusts
with the signing); AND - Trustee has absolute discretion and power to determine
7) State formalities (i.e. signed in front of a notary). when and how much of the trust property is distributed to
the beneficiaries.
2. Precatory Language – words such as “hope” or - Trustee’s exercise of discretion must be in good faith
“request” that only express a settlor’s desire. (court will only interfere if trustee is abusing his power).
- DOES NOT create a valid trust or legal obligation.
8. Support Trusts
B. Types of Trusts - A trust directing the trustee to pay the beneficiary as
much income as necessary for the beneficiary’s support.
- Pure Support Trust à Trustee has NO discretion.
1. Revocable/Irrevocable Trusts
- Discretionary Support Trust à Trustee has discretion.
Majority View à Irrevocable by default unless stated
BUT, Beneficiary may compel trustee to make
otherwise.
payments in accordance with an ascertainable
- Irrevocable trusts cannot not be modified or
standard (if stated in the trust).
revoked by settlor.
Minority View/UTC à revocable unless stated otherwise.
C. How Trust Assets Pass
2. Testamentary Trusts – Created through the provisions
of a settlor’s will - does not take effect until settlor’s death. - Trust assets pass according to the terms of the trust.
- Under UTATA & UPC à May gift property to trust: (a)
during the testator’s lifetime; OR (b) at the testator’s death - If a testamentary trust/distribution fails, the trust property
by will. passes under a residuary clause in a will (if any) or to
- Revocation or termination of the trust before death settlor’s heirs.
causes the gift to lapse.
D. Cy Pres Doctrine
3. Pour-Over Provision
- When a will gifts property to a previously established - Courts will modify a charitable devise “as near as” with
trust. the settlor’s intent if the purpose of the trust or bequest is
- A pour-over does not create a trust. It must be connected frustrated (impracticable, impossible, wasteful).
with a previously created inter vivos trust.
- Only applies if the testator had a general charitable
4. Charitable Trusts – A trust that confers a substantial intent.
benefit to society.
- Beneficiary à may be indefinite or a class of persons.
- Rule against perpetuities DOES NOT apply.
- Failure to state a specific trust purpose or beneficiary will
NOT make the trust fail (instead the court will select a
purpose/beneficiary).

E. Restraints on Alienation & Rights of Creditors G. Modification of a Trust
1. Spendthrift Trust/Provision - Prevents the transfer of 1. Modification of a Trust

a beneficiary’s interest in a trust. Majority View à Can only be modified by the settlor: (a)
- Valid only if restrains both voluntary and involuntary who expressly reserved the power to modify the trust; OR
transfers. (b) who has power to revoke (including amend) the trust.
- Spendthrift interest CANNOT be sold or assigned. Minority View à Settlor is free to amend or revoke
- A creditor may not reach a debtor’s trust interest, (unless trust states otherwise).
EXCEPT: Uniform Trust Code (UTC) à A trust may be modified in
a) Judgment creditor who provided services for the the following instances: (a) by the settlor (unless trust
trust; provides otherwise); (b) settlor and beneficiaries consent;
b) Creditor who furnished necessities; (c) beneficiaries consent + not inconsistent trust purpose;
c) Order for child support or alimony; (d) not anticipated circumstances + further the purpose; (e)
d) Claim by state or federal govt.; OR cy pres doctrine applies; (f) value insufficient + notice to all
e) Self-settled trust (where settlor retains an interest beneficiaries; OR (g) it’s necessary to conform the trust to
– i.e. a revocable trust). the settlor’s intent.
2. Rights of Creditors 2. Equitable Deviation Doctrine

Spendthrift provision – Creditor can only collect from the - If continuing the trust is impractical/wasteful, a court can
beneficiary after a payment is made. modify the terms of the trust if it furthers the trust purpose
No spendthrift provision – Creditor may attach present b/c of unanticipated circumstances.
or future distributions to the beneficiary. Common Law à Only administrative provisions may be
modified.
- A creditor CANNOT compel a distribution subject to the UTC à Dispositive provisions may be modified when
trustee’s discretion, even if: (a) discretion is expressed in circumstances arise that were not anticipated by the
the form of a standard of distribution; OR (b) the trustee settlor.
abused the discretion.
3. Additions Clause – Gives a trustee the specific power
3. Spousal and Child Support to accept/reject additions to the trust property from a
If a judgment or order exists for unpaid marital/child settlor or any other person.
support, the court may order a distribution to satisfy the
judgment and direct the trustee to pay the spouse/child. H. Termination of a Trust
F. Powers of Invasion 1. Termination of a Trust

Under the Uniform Trust Code (UTC):
1. Invasion of Trust Principal a) Revoked or expires pursuant to the term;
- If a beneficiary will eventually receive trust principal, a b) Material purpose achieved;
court may permit invasion UNLESS the invasion: c) Unlawful, contrary to public policy, or impossible;
a) is contrary to settlor’s intent; OR d) Settlor and beneficiaries consent;
b) adversary affects other beneficiaries. e) All beneficiaries consent + Court determines
continuance is not necessary to achieve any trust
2. Express/Implied Powers of Invasion purpose;
- A trustee cannot use trust property to pay income f) Termination will further purpose of the trust b/c of
beneficiaries when trust income is insufficient UNLESS unexpected circumstances;
there is an express or implied power of invasion. g) Cy pres doctrine applies; OR
h) Value of trust is insufficient to justify the cost of
3. Damages for Wrongful Invasion of Principal administration.
- The trustee is liable for the greater of: - Beneficiaries may decide how trust property is distributed
a) restoring the value of the property; OR if terminated by (d) or (e) above.
b) profit made.
2. Distribution Upon Termination
Upon termination, the Trustee shall proceed expeditiously
to distribute the trust assets.

3. Conditions that Prohibit Marriage / Require Divorce - “No further inquiry” rule – A transaction entered into by
- A trust/will provision that prohibits a first marriage or trustee for the trustee’s own benefit is automatically
requires divorce are VOID against public policy. presumed to be a conflict of interest – it is voidable
- But, a restraint on marriage will be upheld if: without further inquire (fairness or good faith is immaterial).
a) it’s a restraint on re-marriage; OR - For a person who has close business or personal
b) the purpose is to take care of a person’s daily relationship with the trustee, the presumption is
needs until they are able to obtain such support rebuttable if the trustee shows the transaction was
through marriage. not affected by any conflict.
I. Power & Duties of Trustees 5. Duty of Loyalty: Duty to Act Impartially – Trustee
must act impartially and with regard to the other
1. Duty to Administer Trust beneficiaries’ interests.
Common Law à Trustee owes beneficiaries the duty to
act with care, skill, and prudence. 6. Duty of Care: Failure to Test the Market – Could
UTC à Trustee must administer trust: (1) in good faith; (2) result in the trustee’s breach of the duty of care.
in accordance with the trust purpose and terms; AND (3) in
the interests of the trust beneficiaries. 7. Duty of Care: Investments & Prudent Investor Rule
- Trustee must exercise the degree of care, skill, and
2. Duty of Care prudence of a reasonable investor investing his own
- Duty of Prudent Administration: Trustee must property.
administer the trust as a prudent person would (must - Must diversify assets, avoid risky investments, and keep
exercise reasonable care, skill, and caution). the trust assets productive.
- Duty to Take Control & Protect Trust Property:
Trustee must take reasonable steps to take control AND 8. Delegation of Trust Duties – A trustee may delegate
protect the trust property (i.e. obtain fire/casualty duties and powers that a prudent trustee would delegate.
insurance). - If trustee delegates a duty, trustee MUST exercise
reasonable care, skill, and caution:
3. Duty of Loyalty: Self-Dealing 1) In selecting an agent;
- Trustee must administer trust solely in the interests of the 2) Establishing the scope and terms of the
beneficiaries. delegation; AND
- Cannot engage in self-dealing. 3) Monitoring the agent’s performance.
- If Trustee engages in self-dealing: - Trustee is NOT liable for an agent’s actions if he meets
a) The transaction is voidable by the beneficiary the above requirements.
affected; OR
b) Beneficiary can seek damages. 9. Trustee Acting in Accordance with Settlor’s Wishes
- Five Exceptions: Revocable Trust à Trustee owes duties only to the
1) Authorized by the trust terms; Settlor (trustee not liable if acted in accordance with
2) Approved by the court; settlor’s wishes).
3) Beneficiary did not commence a judicial Irrevocable Trust à Trustee owes duties to the Settlor
proceeding within the required time; and beneficiaries (trustee is not relieved from liability for
4) Beneficiaries consented, ratified, or released the acting in accordance with settlor’s wishes).
trustee of liability;
5) Transaction occurred before the person became a 10. Principal and Income Allocations
trustee. - Trust receipts/disbursements are allocated according to
State law.
4. Duty of Loyalty: Conflict of Interest - Must be allocated to Income à (1) receipt of rental
- A transaction is presumed to be affected by conflict of payments; (2) money received from an entity (cash
interest if entered into by: dividends, interest on investments); and (3) ordinary
a) Trustee’s spouse; expenses and repairs.
b) Trustee’s descendants, siblings, parents, or their - Must be allocated to Principal à (1) proceeds from the
spouses; sale of a principal asset; (2) all other property received –
c) Agent or attorney of the trustee; OR other than money received from an entity; and (3)
d) An entity that trustee has an interest in that might extraordinary expenses and repairs.
affect the trustee’s best judgment.

11. Damages for Wrongful Invasion of Trust Assets K. Powers of Appointment
- A trustee who wrongfully invades trust assets is liable for
the greater of: 1. Powers of Appointment – When the testator gives
a) the amount required to restore the value of trust another person the power to decide where and to whom
property/distributions; OR the testator’s property will go.
b) any profit made by the trustee from the breach.
2. General Power of Appointment – When the testator
J. Future Interests does not leave any conditions or restrictions.
1. Remainder Beneficiary of a Trust (remaindermen) – 3. Testamentary Power of Appointment – Can only be

Not entitled to receive trust property UNTIL termination of exercised in a will and according to donor’s conditions.
the trust. - Power is effectively exercised in an instrument ONLY IF:
1) Instrument is valid under state law;
2. Representation of Remaindermen 2) Intent to exercise the power are consistent with
A minor, incapacitated, or unborn person MAY be any conditions; AND
represented by a person with a substantially identical 3) The appointment is permissible – authorized by
interest UNLESS: grantor (general residuary clause in a will - blanket
a) already represented; OR exercise clause).
b) a conflict of interest exists. UPC à A general residuary clause expresses intent to
exercise power ONLY IF: (a) the will manifests an intention
3. Substituted Takers to include property subject to power; OR (b) power is a
- A substitute gift is created in the deceased beneficiary’s general power and the creating instrument does not
surviving descendants if: contain a gift if the power is not exercised.
1) The beneficiaries does not survive the distribution Some States & UPC à If donor required the power to be
date; AND exercised by express or specific reference, a blanket
2) An anti-lapse statute applies (but most state anti- exercise clause is NOT sufficient to show intent.
lapse statutes do not apply to trusts).
4. Special Power of Appointment – The holder may
UPC à If a beneficiary of a future interest DOES NOT appoint property only to those authorized by the grantor.
survive the distribution date:
a) If the gift is not a class gift – a substitute gift is 5. Ineffective Power of Appointment – An appointment
created in the surviving descendants; OR made to those NOT authorized by the grantor is
b) If the gift is a single generation class gift (i.e. ineffective and passes to the taker-in-default.
“children”), a substitute gift is created in the
surviving descendants. L. Rule Against Perpetuities (RAP)
4. Remainder Person Predeceases Life Tenant Common Law à A gift must vest within a life in being at
Common Law à If a remainder person dies before a life the time of the grant plus 21 years. Invalidates a gift
tenant, a vested remainder interest will pass to the that will not actually or hypothetically vest within the
remainder person’s heirs. If no heirs, the interest passes period.
to the person’s estate.
- Exception: If a survival provision is in the trust. Some States à Invalid only if gift actually does not vest
within 21 years after the death of a life in being at the time
5. Vested Interests: Condition on Survivorship the interest were created. Courts wait to see if the interest
Common Law à A condition of survivorship on future will actually not vest.
interests in a trust is NOT implied.
UPC à Such condition IS implied. Some States à Statutes reduce any age contingencies
on gifts to 21 years that would be in violation.
6. Acceleration of Future Interests – A person’s future
remainder interest may be accelerated (take possession - A class gift vests under RAP when: (1) class closes; AND
immediately) if the present holder loses his legal right to (2) all conditions for every member of class are satisfied.
the property or disclaims his interest UNLESS the
distribution would harm a beneficiary or potential
beneficiary.

WILLS & ESTATES
A. Intestate Succession
Testator’s Presence:
Intestate Succession Majority States à within the testator’s line of sight.
- Any property not passing by a valid will or by operation of Minority States & UPC à within the range of the
law will be governed by a state’s applicable intestacy testator’s senses.
statute.
3. Doctrine of Integration
Typical Intestate Succession Rules: A document will be integrated into a will if the Testator:
If Decedent: 1) Intended it to be part of the will; AND
• Leaves only a surviving spouse à spouse will 2) It was physically present at the time of will’s
receive entire estate. execution.
• Leaves surviving spouse and descendants: - May be proven by extrinsic evidence or witness
o Most States à spouse and descendants testimony.
will each receive certain %.
o UPC à spouse receive entire estate if all 4. Interested Witnesses
descendants are from the spouse. Common Law à A will must be witnessed by 2
• Does NOT leave a spouse à decedent’s disinterested witnesses (not receiving a benefit under the
descendants. will).
• Does NOT leave spouse or descendants à State Exceptions à A will remains valid even if witnessed
surviving parents. by an interested witness:
o If no surviving parents à descendants of a) if an interested witness is an heir, that person’s
parents. share is reduced to their intestate share; OR
b) if another disinterested witness was present so
Majority of States à Assets pass via per capita at each that there were still 2 disinterested witnesses.
generation.
5. Codicils
- Made after a will is executed, and modifies, amends or
B. Will Execution Requirements
revokes a will.
- Must satisfy the same formalities as a will.
1. Governing Law for Validity of Will - A codicil republishes the will (the will is deemed executed
- The meaning and legal effects of a will are determined by on the same date as the codicil).
state law. - Cannot republish an invalid will (but can cure interested
witness issue).
2. Will Execution Formalities
- A will is valid if the specific state law formalities are 6. Holographic Wills & Codicils – A handwritten will, that
followed. is NOT witnessed.
- Under the UPC, a will must be: - Only some states recognize holographic wills.
1) In writing; - Some states require the writing to be signed by the
2) Signed by testator (or by someone in testator’s testator.
presence and by testator’s direction); AND - In states that recognize holographic wills, a valid
3) Either: (a) signed by at least 2 witnesses within a holographic codicil revokes an earlier will (to the extent it
reasonable time; or (b) notarized. conflicts).
Common Law à Will is invalid if it does not meet the C. Incorporation by Reference & Acts of
state law requirements. Independent Significance
Some States à Will is valid if substantially complied with
requirements. 1. Incorporation by Reference
- A bequest through an unattested memorandum is valid if
UPC Harmless Error Rule à An improperly executed will it meets requirements of incorporation by reference.
is still valid if proven (1) by clear and convincing evidence,
(2) that decedent intended writing to be his will.

Most States à A document or writing will be incorporated UPC à Automatically revived ONLY IF will was partially
by reference if: revoked (unless no testator intent).
1) It was in existence at the time the will was
executed; F. Distribution of Property
2) It was sufficiently described in the will; AND
3) Testator intended to incorporate it into the will. 1. Per Capita at Each Generation
UPC à A bequest of tangible personal property (other Steps to divide assets:
than money) will be incorporated if: 1) Each surviving descendant in the nearest
1) signed by testator; AND generation is allocated one share.
2) the item/devisees are described with reasonable 2) Remaining shares are combined and then divided
certainty. in the same manner among the surviving
– Under UPC, document DOES NOT have to be in descendants of the next generation of
existence at the time of will execution. descendants.
3) Repeat for each generation until all assets are
2. Act of Independent Significance – Acts with distributed.
significance outside of the will–making process.
– Can be used to fill in any gaps of a will. 2. Modern Per Stirpes (Per Capita by Representation)
Steps to divide assets:
D. Revocation of a Will 1) Each surviving descendant in the nearest
generation is allocated one share.
1. Revocation by Physical Act 2) Remaining shares (if any) drop down to the issue
A will is revoked when: of the predeceased takers in the first generation.
1) intent to revoke; AND
2) burned, torn, destroyed, or cancelled by the 3. Per Stirpes
testator. Steps to divide assets:
Common Law à Words of cancellation are valid only if 1) Start with the first generation of which there are
they come in physical contact with words of the will (written living takers.
over). 2) Each living and non-living person in that
UPC à Words of cancellation are valid – no physical generation is entitled to one share.
contact is required. 3) The shares going to non-living takers drop down
directly to their issue.
2. Revocation by Subsequent Will or Codicil
- Valid only to the extent that the previous will conflicts with G. Construction Problems
the new will UNLESS the new will expressly revokes the
previous will in its entirely. 1. Generically Described Property – Property owned at
- A bequest to a former spouse and the spouse’s relatives the time of the decedent’s death matching the description
is revoked upon divorce. in the will.
- The gift applies to whatever item is owned at the time of
3. Dependent Relative Revocation Doctrine testator’s death regardless of what was owned when the
- Cancels a previous revocation that was made under a will was executed.
mistaken belief of law or fact.
– A court considers the testator’s intent when determining 2. Advancements/Satisfaction
the applicability of this doctrine. Common Law à Gift to heirs during lifetime were
considering advancements – amount of gift was deducted
E. Revival from the heir’s share of the estate.
UPC à NOT deemed an advancement unless
1. Revival of a Will a) the will provides for a deduction; OR
Common Law à Automatically revived if a subsequent b) a writing indicated that the property was in
will was revoked. satisfaction of a devise or value will be deducted
Modern View à Revival permitted only when: from the value of devise.
a) Will revoked by physical act – if testator intended
its revival; OR
b) Will revoked by subsequent instrument – if will is
republished by a subsequent will or codicil.

3. Simultaneous Death 9. Exoneration
RUSDA à If no proof by clear and convincing evidence Common Law à A specific devise of real property DID
that one person survived the other by 120 hours (5 days), NOT pass subject to mortgage, and the mortgage was
then the property is distributed as if that person paid from the estate.
predeceased the other person. Modern View à A devise of real property assumes the
– Presumed that each person outlived the other mortgage (unless specifically stated otherwise).
when distributing assets.
– When property is held as joint tenants à rights of 10. Abatement
survivorship are severed, and property passes as - Creditors of the estate always have priority to assets of
though the two held the property as tenants in the estate over beneficiaries.
common. - Order of abatement:
1) Property passing by intestacy
4. Residue of a Residue Approach 2) Residuary devises
Common Law à Passed through intestacy. 3) General devises
Modern View à Passed to the other residuary 4) Specific devises
beneficiaries (but only applies if an anti–lapse statute does - Abatement within each classification is in proportion to
not create substitute taker for a beneficiary who fails to the amount of property each beneficiary would receive.
survive the testator).
11. Slayers Statutes
5. Conditions on Bequests that Prohibits Marriage - If a beneficiary feloniously and intentionally kills the
- A condition that prohibits/restrains a first marriage or decedent à he forfeits all benefits and entitlements under
requires divorce = void against public policy. a will/intestacy.
- A condition will be upheld if: - A conviction after appeal is conclusive.
a) A restraint on remarriage; OR - The determination may be based on a preponderance of
b) Intended purpose is to take care of a person’s evidence proved.
daily needs until they are able to obtain such - Durable Health Care Directive à Withholding medical
support through marriage. treatment is NOT considered to be felonious and
intentional.
6. Lapsed Legacies & Anti-Lapse Statutes
Common Law à All gifts in a will were conditioned on the 12. Disclaimers
beneficially surviving the testator. An effective disclaimer must:
Anti–Lapse Statute à The gift will vest in the issue of 1) be declared in writing;
that predeceased beneficiary if: 2) describe the interest or power disclaimed;
1) predeceased beneficiary is a specified blood 3) be signed by person making disclaimer; AND
relative of the testator; AND 4) delivered or filed.
2) beneficiary leaves issue who survive the testator. Common Law à must be made within a reasonable time.
UPC à Anti-lapse rule applies to gifts to children, Some States à must be made within 9 months.
grandparents, siblings, and stepchildren. UPC à may be made at any time (so long as disclaimer is
not barred – barred if person accepts or transfers interest).
7. Ademption
Common Law à A specific gift adeems if it cannot be If disclaimed, the property:
identified or is not owned at the time of testator’s death a) Passes according to applicable terms of a will/trust
(intent is not relevant). (if any); OR
Most States à A specific gift is adeemed ONLY IF the b) As if the person predeceased the testator (the gift
testator intended the gift to fail. If no intent, beneficiary is lapses unless anti–lapse statute applies).
entitled to:
a) any property acquired as a replacement for the 13. Divorce Revokes Testamentary Provisions in Favor
specific gift; OR of a Former Spouse
b) a monetary devise equal to the value of the gift.
All States à A final divorce decree revokes
8. Stock Split and Dividends – A beneficiary is entitled to bequests/appointments of property to former spouse
additional shares acquired as the result of stock split or - In some states à revoked if divorce proceedings
stock dividends. are pending

Generally, bequests and fiduciary appointments in favor of 2. Legal Definition of Children
former spouse’s relatives remain intact
- BUT, under UPC they are revoked upon divorce. Common Law à only biological, full-blooded children
were entitled to inherit.
- All revoked provisions are treated as if former spouse
predeceased the testator. Modern View à any child, including adopted children.
BUT, non–marital children inheriting from a father
14. Prenuptial Agreements waiving rights to each other’s must establish paternity.
assets upon divorce DOES NOT apply to voluntary gifts or
bequests. 3. Inheritance by Equitable Adoption
- A child may be informally adopted through
H. Types of Gifts words/conduct.
- If a person takes a child in and assumes parental
Specific gift = specifically identified. responsibilities that child is entitled to an intestate share of
decedent’s estate.
General gift = nonspecific, can be satisfied from any of
the funds remaining in the estate. K. Family Protection
Demonstrative gift = hybrid – is general gift from specific 1. Spouse’s Elective Share
source that gift should come from. - Many states have spousal elective share statutes that
give the surviving spouse the right to take a statutory
Gift of Stock shares – may be general or specific share of the deceased spouse’s estate (instead of taking
(depending on language and intent). under the will).
– Shares are a specific gift if the testator owns it at
the time of execution or if it is stock in a closely - Amount of elective share varies by state, and is
held corporation. typically one-third of the net probate estate (the gross-
probate estate less creditor claims). Some states count
I. Class Gifts certain non-probate assets in determining the elective
share amount.
1. Class Gifts
- Class closes at the death of testator/settlor. 2. Pretermitted Children – A child born or adopted after
- Under Rule of Convenience – class is closed when any the execution of a will, is entitled to an intestate share
member of the class is entitled to possession of the gift UNLESS intentionally omitted from the will.
- The term “children” or “issue” is interpreted in accordance
with intestate succession rules. An adopted child inherits L. Will Contests
the same as natural child.
1. Testamentary Capacity
Gifts to predeceased class members depends on Testator must be capable of knowing and understanding:
whether: 1) the nature and extent of his property;
- A group of persons is named à divided among 2) the natural objects of his bounty (relatives/friends);
other members. AND
- Individual members of the class are named à gift 3) the disposition he is making.
will lapse, unless anti–lapse statute applies.
*Appointment of a conservator or guardian alone does not
J. Gifts to Children automatically establish a lack of testamentary capacity.
1. Inheritance Rights of Children
- Generally, a child has NO inheritance rights if parents

leave the child out of the will (except pretermitted children).
- A child intentionally omitted from a will is NOT entitled to

a share of decedent’s estate.

2. Undue Influence 6. Modification of a Will Due to Mistake
- A will is invalid to the extent executed under undue - Most states permit modification to conform with the
influence. testator’s intent if there is clear and convincing evidence of
- When a person exerts influence that overcomes a a mistake.
testator’s free will and judgment. - Some states may modify an unambiguous provision in
the same circumstances (extrinsic evidence not allowed).
Prima facie case:
1) testator had a weakness that made him M. Contractual Wills
susceptible to influence;
2) wrongdoer had access/ opportunity; Contractual Wills – Is a contract to execute mutual wills.
3) wrongdoer actively participated in drafting the will; - To be enforceable, it MUST expressly state that the
AND parties intend their wills to be a binding contract. There
4) unnatural (unexpected) result occurred. must be a specific reference to the contract on which the
joint wills are based.
Common Law Presumption – Undue Influence - If breached, the court will impose a constructive trust in
established if: favor of original intended beneficiaries.
1) confidential relationship (between testator and - The execution of joint/mutual wills DOES NOT create a
wrongdoer); presumption of a contract not to revoke a will.
2) wrongdoer actively participated in drafting will;
AND N. Non–Probate Transfers
3) unnatural result occurred.
1. Joint Bank Accounts – Have a right of survivorship.
3. Fraud – Invalidates a will in full or in part.
Convenience Account Exception – showing the account
Elements:
was set up only for the convenience of the parties (i.e. to
1) a person knowingly makes a material
pay someone’s bills).
misrepresentation of fact;
2) with intent to induce reliance; AND
2. Totten Trusts – A bank account with a named
3) induces reliance to the testator’s detriment.
beneficiary. If beneficiary survives the depositor, the funds
vest to the beneficiary.
Fraud in the Inducement à deceit regarding facts related
– Revocable by: (a) creator withdrawing all funds;
to the instrument (property/beneficially).
(b) deliver a signed, written, and acknowledged
Fraud in the Execution à deceit regarding nature of the
revocation to the bank; OR (c) an express
document being signed.
direction in the depositor’s will that names the
beneficiary and bank.
4. Standing to Challenge a will
Person must be:
3. Life Insurance Beneficiary
a) a beneficiary;
– A beneficiary change is generally NOT permitted through
b) should be a beneficiary; OR
a will. It must be changed on the policy directly.
c) would be financially benefited if the decedent died
without a will.
4. Inter Vivos Gifts – Gifts during donor’s lifetime.
A valid inter vivos gift occurs when:
5. No–Contest Clauses
1) intent to make a gift;
- Penalize an interested person for contesting the will or
2) deliver the gift (may be constructive by giving
instituting other proceedings relating to estate.
means of control/ownership of the gift); AND
- In most states, a no-contest clause will NOT be enforced
3) person accepts the gift.
if probable cause exists for instituting proceedings to
challenge a will.
5. Invasion of Non–Probate Assets to Pay Creditors
- A no-contest clause DOES NOT apply when:
- If the decedent’s estate is inadequate to pay creditors,
a) Fraud or will was revoked by another will and a
those who receive non-probate transfers may be liable to
good basis for the challenge;
pay the decedent’s creditors up to the value of the transfer.
b) Contest is on behalf of minor or incompetent;
Two or more transferees are severally liable.
c) Allegation that court does not have jurisdiction; OR
d) Merely asking the court to interpret the will’s
terms.

O. Powers & Duties of Personal Representatives
A. Agency Relationships
- A personal representative (i.e. executor) must handle all
the matters associated with probating a will.
- If decedent does not name executor, the court will
appoint one in the following order of priority:
1. Surviving spouse who is devisee
2. Other devisees
3. Surviving spouse
4. Other heirs
5. Any creditor (if 45 days have passed since death)
P. Living Wills & Durable Health Care Powers
1. Durable Health-Care Power of Attorney – Gives a

designated agent the power to make health care decisions
in the event of the principal’s incapacity.
- An agent’s power is not limited unless stated
otherwise.
- Must be: (1) in a signed writing; AND (2)
witnessed or notarized.
2. Advanced Directives (Living Wills) – Specifies the

patient’s preferences for treatment/non-treatment should
he be incapacitated.
- Must be: (1) in a signed writing; AND (2)
witnessed or notarized.
3. Insulation of Agent’s Liability – A person is insulated

from liability for health–care decisions made in good faith
under a Durable Health-Care Power of Attorney or Living
Will.
4. Family Consent Laws

- An adult may designate any individual to act as a
surrogate by personally informing the supervising health
care provider.
- When no designation is made, these family members

may act (in order of priority);
1. Spouse (unless legally separated);
2. Adult child;
3. Parent;
4. Adult sibling;
5. Adult who has exhibited special care and concern.
- If there are multiple members in class = majority must

agree on health care decisions.

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1. Creation of Agency Relationship 1. Actual Authority: A principal is bound to a contract

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D. Vicarious Liability for Agent’s Torts

1. Liability for Agent’s Torts: Under the doctrine of

Agent acts within Scope of Employment when:

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Courts analyze the following to determine if an employee or

E. Fiduciary Duties Between Principal and Agent

Duties Owed by Agent to the Principal:

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Pship = Partnership The partnership agreement may be amended at any time

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2. Liability of Limited Partners: 2. Right to Management & Control: Unless otherwise

Liability for Participating in Management: 4. Judgment Against a Partner

3. Liability of Limited Liability Partners 1. Assignment of a Partnership Interest

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Dissolution for a Definite Term occurs:

4. Dissolution vs. Winding Up vs. Termination

Dissolution à Occurs upon the occurrence of any

Winding Up à Is the period between dissolution and

Termination à The real end of the Pship, in which the

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D. Corporate Finance 7. Options for the Purchase of Shares

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Any damages awarded are paid to the corp., but the SH

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1. Mergers & Share Exchanges 1. Judicial Dissolution

5. Dissenter’s Appraisal Rights 2. Member-Managed vs. Manager-Managed

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5. Dissociation from an LLC

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H. Preliminary Injunctions & Temporary Restraining 2. Amendments to Pleadings

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3. Intervention as of Right 2. Depositions

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4. Certified Appeal Exception

5. Rule 54(b) Exception