UBE-MEE Essay Priority Outline July 2019

Essay Priority Outline
For the UBE/MEE

July 2019 Edition
Purchased by Bethany Taylor, b.taylor133@yahoo.com #13486265

DISCLAIMER
The SmartBarPrep Essay Priority Outline (hereinafter “Study Guide”) is

designed to assist you in studying for the Uniform Bar Exam (‘UBE”) and/or
Multistate Essay Exam (“MEE”) essays. It is NOT designed to be a prediction
of what will be asked on the upcoming bar exam or any future examinations.
Although many of the same subjects, topics, and rules have been repeated on
past essay questions, there is NO GUARANTEE that any future exam will test
the same or similar subjects, rules, and/or topics that have appeared on past
exams. SmartBarPrep makes NO WARRANTIES or GUARANTEES as to what
legal rules the National Conference of Bar Examiners and/or state bar
examiners will test on any future Uniform Bar Exam, Multistate Essay Exam,
or state’s bar exam.
While we endeavor to provide accurate, complete, and up-to-date information

in this Study Guide, the accuracy, completeness, adequacy, or currency of the
content is not guaranteed. Your use of any content in this Study Guide or
materials linked from our website (www.smartbarprep.com) is at your own risk.
Although SmartBarPrep does feel that using this Study Guide will help you on
the UBE and MEE, WE MAKE NO GUARANTEE THAT YOU WILL PASS
THE UNIFORM BAR EXAM, MULTISTATE ESSAY EXAM, OR ANY
OTHER STATE’S BAR EXAM.
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UBE/MEE Priority Outline
Rule Layout
Each rule in the SmartBarPrep Essay Priority Outline is presented as shown in the sample
below.
SAMPLE
The title of the rule will be in bold (ex: Bylaws).

Bylaws
The Rule Statement (ex: The Bylaws are the rules and regulations adopted by …) will be in
one or more bullet points under the Rule Title.
The right sidebar lists the exams that the rule was tested. The right sidebar is also ideal for
note taking when reviewing the outline.

Guide to the Frequency & Priority Ratings
Frequency Ratings
To the left of the Rule Statement is the frequency in which the rule was tested on past
Multistate Essay Exams (ex: 1 of 49 exams).
Priority Ratings
Rating s
In addition, a priority rating (HIGH, MED, or LOW) will be listed in the color-coded circle
next to each rule.
 HIGH = High Priority (these are the most important and frequently tested rules)
 MED = Medium Priority (these rules are tested slightly less frequently, but are still
important)
 LOW = Low Priority (these rules have been tested the least)
The purpose of providing the HIGH/MED/LOW priority rating and the frequency is so
you can see how often each rule has been tested compared to the other rules at a glance, and
prioritize your studying to focus on the most important and frequently tested rules rules
first and foremost before moving onto the less important ones.
The priority ratings are based upon how often that rule has been tested in the past for that
particular subject area. Generally, the ratings are based on the following methodology:
Subject Frequency & Priority
1 - Agency
2 - Partnerships HIGH = 4+ exams
3 - Corporations & LLC’s MED = 2 or 3 exams
4 - Civil Procedure LOW = 0 or 1 exams
10 - Family Law
12 - Secured Transactions
14 - Trusts & Future Interests These subjects have been tested on 49 exams.
15 - Wills & Estates
HIGH = 3+ exams
5 - Conflict of Laws MED = 2 exams
LOW = 0 or 1 exams
Conflict of Laws has been tested on 49 exams.

Subject Frequency & Priority
HIGH = 2+ exams
6 - Constitutional Law MED = 0 or 1 exams
7 - Contracts
8 - Criminal Law & Procedure These subjects have been tested on 24 exams.1
9 - Evidence
11 - Real Property There are no LOW priority ratings because these
13 - Torts subjects have only been tested on the MEE since
July 2007 and the pool of exams to pull data from
was more limited. As such, we felt many important
rules would receive an unwarranted LOW
designation.
For the same reasons, the outline includes

additional rules that we felt were important, but
have been not been tested on the essays to date for
these six subjects.
Although a rule with the rating of LOW or MED has shown up either zero or only a few
times in the past, that rule may still show up on future bar examinations. Therefore, such
rules should NOT be ignored, and if you have enough time it should be memorized.
The HIGH,
HIGH MED,
MED or LOW designation is NOT A PREDICTION OF WHAT RULES WILL
APPEAR ON ANY GIVEN EXAM. Instead, we have given each rule a priority designation
based on how often that particular rule has shown up on past Multistate Essay Exams.
For example, whenever a Civil Procedure question appeared we found that approximately
forty (40%) percent of the time a component of the question dealt with the “Subject Matter
Jurisdiction: Diversity of Citizenship” rule. Since this rule is tested frequently, it makes
sense to spend more time memorizing it than, say, the rule of “Depositions”, which appeared
only once in the last 25 years.
The purpose of providing the HIGH/MED

HIGH MED/LOW
MED LOW priority rating and the frequency with
which rules have appeared is so you can see how often each rule has been tested as compared
to the other rules at a glance, and prioritize your studying to focus on the most important
and frequently tested rules first before moving onto the less important ones. Ultimately, this
method promotes efficiency in studying for the bar exam.
Best of luck on the exam!
– The SmartBarPrep Team
1
The subject of Sales (UCC Article 2) was tested on a few exams prior to July 2007; these rules have been included
in the Contracts subject.

Table of Contents
1. AGENCY1
A. Agency Relationships 1
• Creation of Agency Relationship�� 1
• Types of Agency Relationships�� 1
• Termination of Agency Relationship�� 1
B. Contractual Liability of Principal and Agent 2
• Actual Authority�� 2
• Apparent Authority�� 2
• Inherent Agency Power�� 3
• Ratification of Agent’s Contracts�� 4
• Agent’s Contractual Liability�� 4
C. Vicarious Liability of Principal for an Agent’s Torts 5
• Employee vs. Independent Contractor�� 6
• Vicarious Liability of Employer: Doctrine of Respondeat Superior�� 7
• Vicarious Liability of Employer: Liability Where Respondeat Superior Doctrine Inapplicable�� 7
• Vicarious Liability for Acts of Independent Contractors�� 8
D. Fiduciary Duties Between Principal and Agent 8
• Fiduciary Duties Owed by the Agent to the Principal�� 8
2. PARTNERSHIPS9
A. Creation of Partnerships 9
• Creation of a General Partnership�� 9
• Formation of a Limited Partnership (LP)�� 9
• Formation of a Limited Liability Partnership (LLP)�� 10
B. Power and Liability of Partners 10
• Authority to Bind the Partnership �� 10
• Authority to Bind a Partnership After Dissolution�� 11
• Personal Liability of General Partners & Judgment Enforcement�� 11
• Personal Liability of Limited Partners�� 12
• Personal Liability of Limited Liability Partners�� 14
C. Rights of Partners Among Themselves 14
• Sharing of Profits and Losses�� 14
• Right to Management & Control�� 14
• Transfer of Ownership Interest in a Partnership�� 14
• Right to Partnership Property�� 15
• Remuneration (Payment for Partner’s Services)�� 15
• Partnership Ownership of Inventions�� 16
• Advance of Funds to the Partnership & Reimbursement�� 16
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D. Special Rules Concerning Limited Partnerships 16
• Management & Control in a Limited Partnership�� 16
• Limited Partner’s Right to Inspect Records�� 16
E. Duties Owed by Partners 17
• Duty of Care�� 17
• Duty of Loyalty�� 17
• Duty to Provide Full Information�� 18
• Action Against a Partner for Misconduct�� 18
F. Dissociation and Dissolution 19
• Dissociation (Withdrawal of a Partner)�� 19
• Dissolution of a General Partnership�� 19
• Dissolution of a Limited Partnership�� 21
• Winding Up & Termination of the Partnership�� 21
3. CORPORATIONS & LLC’S 22

A. Formation of a Corporation 22
• Formation of a Corporation (Articles of Incorporation)�� 22
• Bylaws�� 22
• Amending the Bylaws�� 23
• Powers of a Corporation�� 23
B. Formation of a Limited Liability Company (LLC) 23
• Formation of an LLC�� 23
C. Pre-Formation Contract Liability 24
• Liability of Promoter for Pre-Incorporation Contracts�� 24
• Liability of Corporation for Pre-Incorporation Contracts �� 24
• Defective Incorporation & Owner Liability�� 24
D. Personal Liability & Piercing the Veil 25
• Personal Liability & Piercing the Veil�� 25
E. Corporate Finance 26
• Common & Preferred Shares�� 26
• Authorized, Outstanding, & Reacquired Shares�� 27
• Consideration in Exchange for Shares�� 27
• Dividends & Distributions to Shareholders�� 28
F. Shareholders 28
• Shareholder Meetings: Right to Vote & Record Date�� 28
• Shareholder Meetings: Proxy Voting & Revocation of a Proxy�� 29
• Shareholder Meetings: Annual Meetings, Special Meetings, & Notice�� 29
• Shareholder Meetings: Quorum & Voting�� 30
• Shareholder Meetings: Election of Directors�� 30
• Shareholder’s Right to Inspect Books and Records�� 31
• Shareholder Voting Agreements�� 31
G. Directors 31
• Board of Directors Meeting: Quorum�� 31
• Board of Directors Meeting: Voting & Objection to Actions �� 32
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• Board of Directors Meeting: Notice & Waiver�� 32
• Board Action by Written Consent�� 32
• Removal of Directors�� 33
H. Officers 33
• Authority of Officers�� 33
• Removal of Officers�� 34
I. Members & Managers 34
• Management of an LLC�� 34
• Authority of Members and Managers of an LLC�� 34
J. Close Corporations & Control Devices 35
• Preemptive Rights�� 35
• Restrictions on Share Transfers�� 36
K. Fiduciary Duties 36
• Fiduciary Duties of Directors: Duty of Care�� 36
• Fiduciary Duties of Directors: Duty of Loyalty�� 37
• Fiduciary Duties of Shareholders�� 38
• Restricting/Eliminating Fiduciary Duties in a Corporation�� 38
• Fiduciary Duties Owed by Members/Managers of an LLC�� 38
• Restricting/Eliminating Fiduciary Duties in an LLC�� 39
L. Shareholder & Member Litigation 40
• Direct & Derivative Actions�� 40
• Derivative Actions: Dismissal by the Board of Directors�� 41
• Federal Securities Law – Rule 10b-5�� 41
M. Fundamental Corporate Changes 42
• Amending the Articles of Incorporation�� 42
• Mergers and Share Exchanges�� 42
• Sale of All or Substantially All of Corporate Assets�� 43
• Dissenter’s Appraisal Rights for Fundamental Changes�� 43
N. Dissolution & Dissociation 44
• Judicial Dissolution of a Corporation�� 44
• Voluntary Dissolution of a Corporation�� 44
• Dissociation of a Member from an LLC�� 45
• Dissolution & Winding Up of an LLC�� 46
4. CIVIL PROCEDURE 47
A. Federal Subject Matter Jurisdiction 47
• Subject Matter Jurisdiction: Federal Question�� 47
• Subject Matter Jurisdiction: Diversity of Citizenship�� 47
• Subject Matter Jurisdiction: Supplemental Jurisdiction�� 49
• Subject Matter Jurisdiction: Domestic Relations Exception�� 49
B. Removal 50
• Removal�� 50
C. Abstention Doctrines 50
• Abstention Doctrines�� 50
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D. Personal Jurisdiction 51
• Personal Jurisdiction�� 51
E. Service of Process and Notice 53
• Service of Process and Notice�� 53
F. Venue 54
• Venue (Proper Venue & Transfer of Venue)�� 54
G. Law Applied by Federal Courts 55
• Law Applied by Federal Courts: Erie Doctrine, Substance vs. Procedure, & Supremacy Clause�� 55
H. Preliminary Injunctions & Temporary Restraining Orders 56
• Preliminary Injunction �� 56
• Temporary Restraining Order (TRO)�� 57
I. Pleadings 57
• Amendments to Pleadings & Relation Back Doctrine�� 57
• Counterclaims�� 58
• Cross-Claims�� 59
J. Rule 11 59
• Rule 11 – Representations to the Court�� 59
• Rule 11 – Sanctions Imposed�� 60
• Rule 11 – Procedure for Filing a Sanctions Motion�� 61
K. Joinder of Parties and Claims 61
• Permissive Joinder of Parties�� 61
• Required Joinder of Parties�� 61
• Intervention as of Right & Permissive Intervention�� 62
• Impleader (Third-Party Actions)�� 63
• Class Action Requirements & Certification�� 63
L. Discovery 64
• Discoverable Information (Relevant & Proportional Standard)�� 64
• Depositions�� 64
• Electronically Stored Information & Spoliation Sanctions�� 65
• Rule 26(g) – Signing Disclosures & Sanctions for Improper Certification�� 65
• Rule 26(a) Initial Disclosures�� 66
• Attorney Work Product Doctrine �� 66
M. Pretrial Conference and Order 67
• Pretrial Conference and Order�� 67
N. Motions 68
• Motion to Dismiss & Motion for Judgment on the Pleadings�� 68
• Motion for Summary Judgment�� 69
• Motion for Judgment as a Matter of Law�� 69
• Motion for a New Trial�� 70
O. Verdicts and Judgments 71
• Preclusive Effect of a Default Judgment�� 71
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P. Claim Preclusion & Issue Preclusion 71
• Claim Preclusion (Res Judicata)�� 71
• Issue Preclusion (Collateral Estoppel)�� 72
Q. Appeals 72
• Appeals: Final Judgment Rule & Exceptions�� 72
5. CONFLICT OF LAWS 75
A. Choice of Law Theories 75
• Choice of Law Theories: Traditional Vested Rights Approach�� 75
• Choice of Law Theories: Most Significant Relationship Approach �� 75
• Choice of Law Theories: Interest Analysis Approach�� 75
B. Application in Specific Areas 76
• Choice of Law Rules: Torts�� 76
• Choice of Law Rules: Contracts�� 77
• Choice of Law Rules: Contractual Forum-Selection Clause�� 78
• Choice of Law Rules: Premarital Agreements�� 78
• Choice of Law Rules: Real Property Cases�� 78
• Choice of Law Rules: Inheritance of Real & Personal Property�� 79
C. Law Applied by Federal & State Courts 79
• Law Applied by Federal Courts: Erie Doctrine, Substance vs. Procedure, & Supremacy Clause�� 79
• Law Applied by State Courts: Substance vs. Procedure�� 80
D. Recognition & Enforcement of Judgments 80
• Full Faith and Credit: State, Federal, and Foreign Court Judgments�� 80
• Full Faith and Credit: Ceremonial & Common Law Marriage�� 81
• Full Faith and Credit: Family Law Judgments�� 81
6. CONSTITUTIONAL LAW 83
A. Constitutional Limits on Federal Court Jurisdiction 83
• State Sovereign Immunity (11th Amendment)�� 83
B. Justiciability 83
• Standing�� 83
• Advisory Opinions, Ripeness, & Mootness�� 84
C. Powers of Congress 85
• Commerce Clause�� 85
• Power to Enforce the 13th, 14th, and 15th Amendments�� 85
• Taxing Power�� 86
• Spending Power�� 86
D. Powers of the President 86
• Executive Powers: Domestic Powers�� 86
• Executive Powers: Treaty and Foreign Affairs Powers�� 87
E. Federal Interbranch Relationships 87
• Delegation of Congressional Powers & Non-Delegation Doctrine�� 87
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F. Intergovernmental Immunities 87
• State Immunity from Federal Law (10th Amendment)�� 87
G. Federalism-Based Limits on State Authority 88
• Negative Commerce Clause�� 88
• Supremacy Clause & Preemption�� 89
H. Governmental Action 89
• Governmental Action (“State Action”)�� 89
I. Due Process (5th & 14th Amendments) 90
• Substantive Due Process�� 90
• Procedural Due Process�� 90
J. Equal Protection (5th & 14th Amendments) 91
• Equal Protection Analysis�� 91
K. Takings (5th Amendment) 92
• Takings (5th Amendment)�� 92
L. Other Protections 93
• Privileges and Immunities Clause�� 93
M. Freedom of Religion 94
• Freedom of Religion: Establishment Clause�� 94
• Freedom of Religion: Free Exercise Clause�� 94
N. Freedom of Speech 95
• Freedom of Speech: Content-Based vs. Content-Neutral Restrictions�� 96
• Freedom of Speech: Public Forum, Limited Public Forum, & Non-Public Forum�� 96
• Unprotected Speech: Fighting Words�� 98
• Unprotected Speech: Incitement of Imminent Lawless Action�� 98
• Unprotected Speech: Obscenity�� 99
• Freedom of Speech: Regulation of Commercial Speech�� 99
• Freedom of Speech: Public School Students�� 99
• Freedom of Speech: Government Employees�� 100
• Freedom of Speech: Regulation of Expressive Conduct�� 101
• Freedom of Speech: Prior Restraint�� 101
• Freedom of Speech: Vague & Overbroad Laws �� 101
O. Freedom of the Press 102
• Freedom of the Press: Defamation & Actual Malice Standard�� 102
• Freedom of the Press: Disclosure of Private Facts & Generally Applicable Laws�� 102
P. Freedom of Association 103
• Freedom of Association�� 103
7. CONTRACTS104
A. Formation of Contracts 104
• UCC Article 2 Governs Contracts for the Sale of Goods�� 104
• Applicable Law: UCC Article 2 vs. Common Law�� 105
• Mutual Assent: Offer & Acceptance�� 105
• Mutual Assent: Timing of Acceptance/Revocation & the Mailbox Rule�� 106
• Mutual Assent: Battle of the Forms (Mirror Image Rule and UCC Exception)�� 107
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• Mutual Assent: Implied-in-Fact Contracts�� 107
• Indefiniteness or Absence of Terms�� 107
• Consideration: Bargained for Exchange & Substitutes�� 108
• Consideration: Settlement/Release of Legal Claims�� 109
• Modification of Contracts: Pre-Existing Duty Rule & Exceptions�� 109
B. Defenses to Enforceability 109
• Incapacity�� 109
• Duress�� 110
• Undue Influence�� 110
• Mutual Mistake & Unilateral Mistake�� 110
• Misrepresentation�� 111
• Illegality & Public Policy�� 112
• Unconscionability�� 112
• Statute of Frauds: Contracts Requiring a Signed Writing�� 112
C. Contract Content & Meaning 114
• Parol Evidence Rule�� 114
D. Performance, Breach, & Discharge 114
• Condition Precedent�� 114
• Implied Obligation of Good Faith and Fair Dealing�� 115
• Impossibility, Impracticability, & Frustration of Purpose�� 115
• Minor Breach (Substantial Performance Doctrine) vs. Material Breach�� 116
• Divisible Performance (Part Performances as Agreed Equivalents)�� 116
• UCC Perfect Tender Rule & Exceptions�� 117
• UCC Acceptance of Goods & Revocation of Acceptance�� 117
• Anticipatory Repudiation & Adequate Assurances�� 118
• Accord and Satisfaction�� 118
E. Warranties in Sales of Goods Contracts 119
• Express Warranty�� 119
• Implied Warranty of Merchantability�� 119
• Implied Warranty of Fitness for a Particular Purpose�� 119
• Warranty of Title�� 120
• Limiting Damages for Breach of Warranty�� 120
F. Third-Party Rights 120
• Third-Party Beneficiaries & Enforcement of Rights�� 120
• Assignment of Rights�� 121
• Delegation of Duties�� 122
G. Remedies 122
• Common Law Expectation Damages�� 122
• Consequential Damages�� 123
• Punitive Damages�� 123
• Specific Performance�� 123
• UCC Seller’s Remedies & Damages�� 123
• UCC Buyer’s Remedies & Damages�� 124
• Waste Doctrine & Diminution in Value Damages�� 124
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• Restitution (Unjust Enrichment)�� 125
• Rescission�� 125
• Mitigation of Damages�� 125
8. CRIMINAL LAW & PROCEDURE 126

A. General Principles 126
• Elements of a Crime: Acts and Omissions�� 126
• Elements of a Crime: Causation�� 126
• Elements of a Crime: Mental States�� 127
B. Homicide 128
• Murder�� 128
• Manslaughter�� 128
C. Other Crimes 129
• Theft Crimes & Receiving Stolen Property�� 129
• Robbery�� 130
• Burglary�� 130
• Rape & Statutory Rape�� 130
• Assault and Battery�� 131
• Kidnapping & False Imprisonment�� 131
• Arson�� 131
• Criminal Possession Offenses�� 132
D. Inchoate Offenses 132
• Attempt�� 132
• Conspiracy�� 132
• Solicitation�� 133
E. Parties to a Crime 133
• Accomplice Liability �� 133
F. Defenses 134
• Duress�� 134
• Insanity�� 135
• Justification: Self-Defense & Defense of Others�� 135
• Intoxication�� 136
• Mistake of Fact or Law�� 136
G. Arrest, Search, and Seizure (4th Amendment) 137
• Fourth Amendment Right – Government Action & Standing�� 137
• Arrests�� 138
• Request for Information, Stop and Inquire, & Stop and Frisk�� 138
• Warrant Requirement for All Searches, Unless an Exception Applies�� 139
• Exception to Warrant Requirement: Plain View Doctrine�� 139
• Exception to Warrant Requirement: Exigent Circumstances�� 140
• Exception to Warrant Requirement: Automobile Exception�� 140
• Exception to Warrant Requirement: Search Incident to Arrest�� 140
• Exception to Warrant Requirement: Consent�� 140
• Exception to Warrant Requirement: Inventory Search�� 141
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H. Confessions, Privilege Against Self-Incrimination, and Right to Counsel 141
• Confessions: 14th Amendment Due Process Clause�� 141
• Confessions: 5th Amendment Privilege Against Self-Incrimination & Miranda Rights�� 141
• Confessions: 6th Amendment Right to Counsel�� 143
• Right to Counsel & Effective Assistance of Counsel at Trial�� 144
I. Line-ups & Police-Arranged Identification Procedures 144
• Line-Ups & Police-Arranged Identification Procedures�� 144
J. Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine 145
• Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine�� 145
K. Fair Trial and Guilty Pleas 146
• Right to a Jury Trial �� 146
• Competence to Stand Trial�� 146
L. Double Jeopardy 147
• Double Jeopardy�� 147
M. Burden of Proof and Persuasion 147
• Burden of Proof, Presumptions, & Sufficiency of Evidence�� 147
N. Appeal and Error 148
• Harmless Error Rule�� 148
9. EVIDENCE149
A. Probative Value 149
• Probative Value: Relevancy & Rule 403 Exclusions�� 149
B. Policy Exclusions 149
• Subsequent Remedial Measures�� 149
• Compromise/Settlement Offers & Negotiations�� 150
• Pleas & Plea Negotiations�� 150
• Offers to Pay Medical Expenses�� 150
• Liability Insurance�� 150
C. Physical and Documentary Evidence 151
• Authentication of Evidence�� 151
• Best Evidence Rule�� 151
D. Character Evidence & Related Concepts 151
• Character Evidence�� 151
• Prior Bad Acts�� 153
• Habit or Routine Practice�� 153
E. Impeachment 154
• Impeachment: Prior Inconsistent Statements�� 154
• Impeachment: Prior Convictions�� 154
• Impeachment: Specific Instances of Conduct�� 155
• Impeachment: Character for Truthfulness�� 155
• Impeachment: Ability to Observe, Remember, or Relate Accurately�� 155
• Impeachment: Hearsay Declarants�� 155
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F. Presentation of Evidence 156
• Refreshing Recollection�� 156
• Judicial Notice�� 156
• Lay Witness Testimony & Opinions�� 156
• Expert Witness Testimony�� 157
G. Hearsay 157
• Hearsay, Multiple Hearsay, & Non-Hearsay�� 157
• Hearsay Exclusion: Statements by a Party Opponent�� 158
• Hearsay Exclusion: Prior Statements by a Witness�� 158
• Hearsay Exception: Present Sense Impression�� 158
• Hearsay Exception: Excited Utterance�� 158
• Hearsay Exception: Business Records�� 159
• Hearsay Exception: Statements Made for Medical Diagnosis/Treatment �� 159
• Hearsay Exception: Statements of Mental, Emotional, or Physical Condition�� 159
• Hearsay Exception: Dying Declaration�� 159
• Hearsay Exception: Statement Against Interest�� 160
• Hearsay Exception: Public Records�� 160
• Hearsay Exception: Past Recollection Recorded�� 160
• Sixth Amendment Right to Confront Witnesses�� 161
H. Privileges 161
• Spousal Privileges: Spousal Immunity & Confidential Marital Communications�� 161
• Attorney-Client Privilege�� 162
• Attorney Work Product Doctrine�� 162
• Physician-Patient Privilege�� 162
• Psychotherapist-Patient Privilege�� 163
10. FAMILY LAW 164

A. Getting Married 164
• Marriage Requirements (State of Mind & Procedural)�� 164
• Common Law Marriage�� 164
• Bigamous Marriage�� 164
B. Premarital Agreements 165
• Premarital Agreements: Enforceability�� 165
• Premarital Agreements: Child Custody & Support�� 166
• Premarital Agreements: Spousal Support�� 166
• Premarital Agreements: Eliminating Fundamental Marital Duties & Allocating Financial Responsibilities�� 166
C. Being Married 166
• Rights & Responsibilities of Spouses: Married Women’s Property Acts�� 166
• Rights & Responsibilities of Spouses: Payment for Necessities �� 167
D. Jurisdiction & Recognition of Decrees in Marital Actions 167
• Jurisdiction: Marital/Divorce & Support Actions�� 167
• Jurisdiction: Child Custody & Adoption Matters�� 168
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E. Divorce, Annulment, Separation, & Dissolution 169
• Annulment�� 169
• Divorce Grounds�� 169
• Setting Aside Separation & Divorce Settlement Agreements�� 170
F. Division of Property 170
• Division of Property: Marital vs. Separate Property�� 170
• Division of Property: Professional License or Degree�� 171
• Division of Property: Marital & Economic Fault�� 171
• Division of Property: No Termination Upon Death�� 171
• Modification of a Property Division Award�� 172
G. Spousal & Child Support 172
• Spousal Support: When Support May be Awarded, Amount, & Termination�� 172
• Spousal Support: Reinstatement of Prior Award �� 173
• Child Support�� 173
• Modification & Enforcement of Child/Spousal Support Orders�� 173
H. Child Custody & Visitation 174
• Child Custody: Best Interests of the Child Standard�� 174
• Child Custody: Parent vs. Third-Party Custody�� 174
• Child Custody: Joint Custody�� 175
• Child Custody: Presumption of Parental Fitness�� 175
• Visitation: Parental Visitation Rights �� 175
• Visitation: Third-Party Visitation Rights�� 175
• Child Custody: Relocation of the Custodial Parent & Child�� 176
• Modification of a Child Custody Order�� 176
I. Rights of Unmarried Cohabitants 177
• Division of Property of Unmarried Cohabitants�� 177
• Agreements Between Unmarried Cohabitants�� 177
• Putative Spouse Doctrine�� 177
J. Unmarried Parents & Their Children 178
• Establishing Paternity, Presumption of Legitimacy, & Paternity by Estoppel�� 178
• Unmarried Biological Father’s Rights�� 178
K. Parent, Child, & State 179
• Right to Control the Child’s Upbringing�� 179
• Intra-Family Lawsuits & Immunities�� 179
• Loss of Consortium Claims�� 179
L. Adoption 180
• Adoption & Parental Consent�� 180
• Adoption: Visitation for Biological Parents �� 180
M. Alternatives to Adoption 181
• Artificial Insemination & In Vitro Fertilization�� 181
• Surrogacy Arrangements �� 181
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11. REAL PROPERTY 182
A. Present Estates & Future Estates 182
• Present Estates: Fee Simple Absolute & Fee Tail�� 182
• Present Estates: Defeasible Fees�� 182
• Present Estates: Life Estate�� 183
• Present Estates: Statute of Limitations�� 183
• Future Estates: Reverter & the Right of Re-Entry�� 183
• Future Estates: Vested and Contingent Remainders�� 184
B. Co-Tenancy 184
• Tenancy in Common�� 184
• Joint Tenancy: Formation�� 185
• Joint Tenancy: Severance�� 185
• Co-Tenant’s Entitlement to Rent or Reimbursement for Repairs/Improvements�� 185
C. Landlord & Tenant Issues 186
• Types of Leasehold Interests�� 186
• Tenant Duties: Duty to Pay Rent�� 187
• Landlord’s Rights and Liabilities Concerning a Hold-Over Tenant�� 187
• Landlord Duties: Implied Warranty of Habitability �� 188
• Landlord Duties: Constructive Eviction �� 188
• Landlord Duties: Duty to Mitigate Damages �� 189
• Assignment of a Lease�� 189
• Subleases�� 190
• Termination of Leases: Surrender�� 190
D. Covenants & Equitable Servitudes 191
• Real Covenants�� 191
• Equitable Servitudes�� 191
• Common Scheme or Plan Doctrine (Reciprocal Negative Servitude)�� 192
• Restrictive Covenants: Common Interest Ownership Communities & Property Owner Associations�� 192
E. Easements & Licenses 193
• Easements by Grant, Prescription, Implication, & Necessity�� 193
• Scope of an Easement�� 194
• Termination of an Easement�� 194
• Licenses�� 195
F. Fixtures 195
• Fixtures�� 195
G. Adverse Possession 195
• Adverse Possession�� 195
H. Land Conveyances 196
• Requirements for a Valid Land Sale Contract�� 196
• Warranty of Marketable Title�� 196
• Warranty of Marketable Title: Damages Recoverable�� 197
• Doctrine of Equitable Conversion & Risk of Loss�� 197
• Time of Performance for Real Estate Contracts�� 198
© 2018 SmartBarPrep.com xii

• Action for Specific Performance of Real Property�� 198
• Home Builder’s Implied Warranty�� 198
I. Title to Real Property 199
• Deed Requirements�� 199
• General Warranty Deed, Special Warranty Deed, & Quitclaim Deed�� 199
• Estoppel by Deed�� 200
• Chain of Title and Wild Land Records�� 200
• Recording Statutes & Notice�� 200
• Bona Fide Purchasers & The Shelter Rule�� 201
• Owner by Adverse Possession vs. Subsequent Bona Fide Purchasers �� 201
• Deeds: Drafting, Review, and Negotiation of Closing Documents�� 202
• Deeds: Persons Authorized to Execute Real Estate Documents�� 202
J. Mortgages/Security Devices 202
• Mortgages & Requirements for a Valid Mortgage�� 202
• Purchase Money Mortgage�� 203
• Future-Advance Mortgage�� 203
• Deed of Trust�� 203
• Assumption & Transfer Subject to a Mortgage�� 204
• Mortgages: Foreclosure, Order of Preference, and Deficiency Judgments�� 204
• Transfer of a Mortgage Note�� 204
K. Zoning 205
• Zoning Ordinances�� 205
• Zoning Ordinances: Variances�� 205
• Zoning Ordinances: Previous Non-Conforming Use�� 205
L. Conflict of Laws 205
• Choice of Law Rules: Real Property Cases�� 205
12. SECURED TRANSACTIONS 207

A. Applicability & Scope of Article 9 of the UCC 207
• Article 9 of the UCC Governs Secured Transactions�� 207
• Scope of Article 9 of the UCC: Substance Over Form Controls�� 207
B. Definitions 208
• Types of Collateral: Accounts �� 208
• Types of Collateral: Deposit Accounts �� 208
• Types of Collateral: Inventory�� 208
• Types of Collateral: Equipment�� 208
• Types of Collateral: Consumer Goods�� 209
• Types of Collateral: Proceeds�� 209
• Types of Collateral: Chattel Paper�� 209
C. Attachment and Perfection 209
• Attachment and Perfection�� 209
• Financing Statements�� 210
• No Interest Retained in a Payment Right Sold & Rights/Title with Respect to Creditors and Purchasers�� 211
• Purchase Money Security Interests (PMSI’s)�� 211
• Automatic Perfection for Certain Assignment of Accounts�� 211
© 2018 SmartBarPrep.com xiii

D. Validity of Security Agreements & Rights of Parties 212
• Security Interest in the Sale of Collateral & Identifiable Proceeds�� 212
• Consignment�� 212
• Control of a Deposit Account�� 213
• Future Advances�� 213
E. Protection of a Buyer of Goods 213
• Transfers of Collateral & The Shelter Principle�� 213
• Buyers in the Ordinary Course of Business �� 213
• Consumer-to-Consumer Rule�� 214
F. Priorities 214
• Priority for Perfected Interests & Unperfected Interests�� 214
• Priority of Liens Arising by Law�� 215
• Priority of Judgment Lien Creditors�� 215
• Fixtures�� 215
G. Accessions 216
• Accessions & Commingling�� 216
H. Secured Party’s Rights & Remedies Upon Default 216
• Secured Party’s Right to Take Possession of Collateral �� 216
• Secured Party’s Right to Dispose of Collateral�� 216
• Right to Collect Directly from an Account Debtor�� 217
I. Debtor’s Rights Upon Default 218
• Damages Available to a Debtor for a Secured Party’s Failure to Comply with Applicable Rules�� 218
• Debtor’s Right of Redemption�� 218
• Deficiency Judgments�� 218
13. TORTS220
A. Intentional Torts 220
• Battery�� 220
• Assault�� 220
• False Imprisonment�� 221
• Intentional Infliction of Emotional Distress�� 221
• Trespass to Land�� 221
• Trespass to Chattels & Conversion�� 222
• Doctrine of Transferred Intent�� 222
• Intentional Tort Defenses: Consent�� 223
• Intentional Tort Defenses: Privileges�� 223
B. Negligence 224
• Prima Facie Case of Negligence�� 224
• Affirmative Duty to Act & Rendering Aid�� 224
• Standard of Care: Reasonable Person Standard�� 225
• Standard of Care: Children �� 225
• Standard of Care: Professionals�� 225
• Standard of Care: Land Owner/Possessor’s Duty to Entrants�� 226
• Standard of Care: Landlord’s Duty to Tenants�� 227
• Negligence Per Se�� 227
© 2018 SmartBarPrep.com xiv

• Res Ipsa Loquitur�� 228
• Causation: Actual and Proximate Cause�� 229
• Proximate Cause: Intervening Causes�� 229
• Causation: Eggshell Plaintiff Rule & Emotional Distress Stemming from Physical Injury�� 229
C. Defenses to Negligence Claims 230
• Comparative Negligence & Contributory Negligence�� 230
• Assumption of Risk�� 230
D. Negligent Infliction of Emotional Distress 230
• Negligent Infliction of Emotional Distress�� 230
E. Liability for Acts of Others (Vicarious Liability) 231
• Vicarious Liability of Employer: Doctrine of Respondeat Superior�� 231
• Vicarious Liability of Employer: Liability Where Respondeat Superior Doctrine is Inapplicable�� 232
• Employee vs. Independent Contractor�� 232
• Vicarious Liability for Acts of Independent Contractors�� 232
F. Liability of Multiple Defendants 233
• Joint and Several Liability�� 233
• Indemnification �� 233
• Contribution�� 233
• Doctrines of Alternative Liability, Joint Enterprise, & Market Share Liability�� 234
G. Economic & Dignitary Torts 234
• Defamation�� 234
• Invasion of Privacy Torts�� 236
• Intentional Interference with Business Relations�� 236
• Intentional & Negligent Misrepresentation�� 237
• Public and Private Nuisance�� 237
H. Common Law Strict Liability 238
• Strict Liability: Wild & Domestic Animals�� 238
• Strict Liability: Abnormally Dangerous Activity�� 238
I. Products Liability 238
• Strict Products Liability: Liability for Manufacturing Defect, Design Defect, & Failure to Warn�� 238
• Products Liability: Liability for Negligence�� 240
• Products Liability: Liability for Breach of Warranty�� 240
14. TRUSTS & FUTURE INTERESTS 241

A. Trust Creation 241
• Trust Formation Elements�� 241
• Precatory Language & Promises to Create a Trust�� 241
B. Types of Trusts 242
• Revocable & Irrevocable Trusts�� 242
• Testamentary Trusts�� 242
• Pour-over Provision in a Will�� 242
• Charitable Trusts�� 243
• Illusory Trusts�� 243
© 2018 SmartBarPrep.com xv

• Resulting Trusts�� 243
• Discretionary Trusts�� 243
• Support Trusts�� 244
C. How Trust Assets Pass 244
• How Trust Assets Pass�� 244
D. Cy Pres Doctrine 244
• Cy Pres Doctrine�� 244
E. Restraints on Alienation & Rights of Creditors 245
• Spendthrift Trusts�� 245
• Rights of Creditors�� 245
F. Powers of Invasion 246
• Powers of Invasion�� 246
G. Modification of a Trust 246
• Modification of a Trust�� 246
• Equitable Deviation Doctrine & Modification of Administrative and Dispositive Trust Provisions�� 247
• Additions Clause in a Trust�� 248
H. Termination of a Trust 248
• Termination of a Trust�� 248
• Distribution Upon Termination�� 248
• Conditions that Prohibit Marriage or Require Divorce�� 248
I. Powers & Duties of Trustees 249
• Trustee Duty to Administer the Trust�� 249
• Trustee Duty of Care: Prudent Administration, Take Control & Protect Trust Property�� 249
• Trustee Duty of Loyalty: Self-Dealing�� 249
• Trustee Duty of Loyalty: Conflicts of Interest �� 250
• Trustee Duty of Loyalty: Duty to Act Impartially �� 250
• Trustee Duty of Care: Failure to Test the Market�� 250
• Trustee Duty of Care: Investments & Prudent Investor Rule�� 251
• Delegation of Trustee Duties�� 251
• Trustee Acting in Accordance with the Settlor’s Wishes�� 251
• Principal and Income Allocations�� 252
• Damages for Wrongful Invasion of Trust Assets�� 252
J. Future Interests 252
• Remainder Beneficiary of a Trust�� 252
• Future Interests: Representation of Remaindermen�� 252
• Future Interests: Substituted Takers �� 253
• Vested Remainder Interest�� 253
• Vested Interests: Condition on Survivorship�� 253
• Acceleration of Future Interests�� 254
K. Powers of Appointment 254
• Powers of Appointment �� 254
• Powers of Appointment: Special Power of Appointment�� 255
• Powers of Appointment: Ineffective Appointments�� 255
© 2018 SmartBarPrep.com xvi

L. Rule Against Perpetuities 255
• Common Law Rule Against Perpetuities & Modern Modifications�� 255
M. Construction Problems 256
• Class Gifts�� 256
15. WILLS & ESTATES 257

A. Intestate Succession 257
• Intestate Succession�� 257
B. Will Execution Requirements 257
• Will Execution Formalities�� 257
• Will Execution Formalities: Strict Compliance & Substantial Compliance Doctrine�� 258
• Doctrine of Integration�� 258
• Interested Witnesses�� 258
• Codicils�� 259
• Holographic Wills & Codicils�� 259
C. Incorporation by Reference & Acts of Independent Significance 259
• Incorporation by Reference �� 259
• Acts of Independent Significance�� 260
D. Revocation of a Will 260
• Revocation by Physical Act�� 260
• Revocation by Subsequent Will or Codicil�� 260
• Dependent Relative Revocation Doctrine�� 260
E. Revival 261
• Revival of a Will�� 261
F. Contractual Wills 261
• Contractual Wills�� 261
G. Distribution of Property 262
• Will Takes Effect at the Time of Death�� 262
• Per Capita at Each Generation Distribution�� 262
• Modern Per Stirpes (Per Capita by Representation) Distribution�� 262
• Per Stirpes Distribution�� 262
H. Construction Problems 263
• Generically Described Property �� 263
• Advancements/Satisfaction�� 263
• Simultaneous Death�� 263
• Residue of a Residue Approach �� 263
• Conditions that Prohibit Marriage or Require Divorce�� 264
• Wills Provisions Governing when the Testator Dies With or Without Issue�� 264
• Lapsed Gifts & Anti-Lapse Statutes �� 264
• Ademption�� 264
• Stock Splits and Dividends�� 265
• Exoneration �� 265
• Abatement�� 265
© 2018 SmartBarPrep.com xvii

• Slayer Statutes �� 266
• Disclaimers�� 266
• Divorce Revokes Testamentary Provisions to a Former Spouse�� 266
• Prenuptial Agreement Does Not Apply to Voluntary Gifts or Bequests �� 267
I. Types of Gifts 267
• Specific, General, and Demonstrative Gifts�� 267
J. Class Gifts 267
• Class Gifts�� 267
K. Gifts to Children 268
• Inheritance Rights of Children & Disinheritance�� 268
• Legal Definition of Children�� 269
• Inheritance by Equitable Adoption�� 269
L. Family Protection 269
• Spouse’s Elective Share�� 269
• Pretermitted Children�� 270
M. Will Contests 271
• Testamentary Capacity�� 271
• Undue Influence �� 271
• Fraud�� 271
• Standing to Challenge a Will�� 272
• No-Contest Clauses�� 272
• Modification of a Will Due to Mistake�� 272
N. Non-Probate Transfers 272
• Joint Bank Accounts & Convenience Account Exception�� 272
• Totten Trusts�� 273
• Life Insurance Beneficiary�� 273
• Inter Vivos Gifts�� 273
• Invasion of Non-Probate Assets to Pay Creditors�� 274
O. Powers & Duties of Personal Representatives 274
• Powers & Duties of Personal Representatives �� 274
P. Living Wills & Durable Health Care Powers 274
• Durable Health-Care Power of Attorney & Advanced Directives�� 274
• Durable Health Care Power of Attorney & Living Wills: Insulation of Agent’s Liability�� 275
• Family Consent Laws�� 275
© 2018 SmartBarPrep.com xviii

01 AGENCY
A. Agency Relationships MEE TIP

■■ Creation of Agency Relationship The subjects of Agency and
Partnerships are normally tested
• An agent is a person or entity that acts on behalf of together on essay questions.
HIGH another – the principal. Agency is a fiduciary relationship,

and exists if there is: (1) assent (a formal or informal Feb 2009, Essay 1
4 of 49 Exams
agreement between the principal and the agent); (2) benefit Feb 2006, Essay 2
(the agent’s conduct on behalf of the principal primarily July 2004, Essay 5
benefits the principal); AND (3) control (the principal has Feb 1996, Essay 5
the right to control the agent by being able to supervise the
agent’s performance – the degree of control does not need
to be significant). Whether an agency relationship exists MEE TIP
depends upon the existence of the required elements above
(the characterization of the relationship by the parties is The rule for Creation of an
Agency Relationship is normally
irrelevant). tested along with such topics as
authority, undisclosed principal,
■■ Types of Agency Relationships or employee vs. independent
contractor.
• There are three types of agency relationships. A universal
LOW agent has broad authority to act on behalf of the principal, Feb 2005, Essay 7
and is authorized to perform ALL acts the principal is
1 of 49 Exams
allowed to perform. A general agent normally has authority
to conduct a series of transactions over a period of time for
a particular purpose, business, or operation (i.e. a manager
of a restaurant). A special agent has limited authority to
conduct: (a) a specific act/transaction; OR (b) certain
actions over a specified period of time.
■■ Termination of Agency Relationship

• An agency relationship terminates and the agent no longer has July 2002, Essay 6
MED authority to act if: (a) the principal or the agent manifests to July 2001, Essay 6
the other that the relationship is terminated; (b) a specified July 1996, Essay 2
3 of 49 Exams term of the agent’s authority expired; (c) upon operation of
law by the death of the principal or agent; OR (d) upon
operation of law by the incapacity of the principal or agent
(except where a durable power of attorney exists).
o Under the common law, an agent’s authority is
revoked upon death, regardless of whether the third
party has notice of the death. In some states, the
authority is not revoked until the third party is notified
of the principal’s death.
• Apparent authority continues until the principal communicates
the termination to third parties (even if the agency relationship
was actually terminated). A principal may communicate
termination by notifying third parties directly, making a public
announcement, or by recovering from the agent any items
indicating authority.
© 2019 SmartBarPrep.com 1

01 AGENCY
• Termination of an Agency Contract: When an agency

relationship is governed by an agency contract
(i.e. employment agreement), the principal can still terminate
the agent at any time. However, the principal may be liable
for damages if the agency is terminated prior to the expiration
of the contract term (unless the agent materially breached the
contract).
B. Contractual Liability of Principal and Agent

MEE TIP
■■ Actual Authority
If the essay question generally
• A principal is bound to contracts entered into by its agent if asks “Did the agent have
HIGH the agent has actual or apparent authority. Actual authority authority?” or “Is the principal
liable for the contract entered
may be express or implied. Express authority occurs when into by the agent?”, then apply
10 of 49 Exams
the principal has explicitly told the agent (either orally the rules for both Actual Authority
or in writing) that he is entitled to act. Implied authority and Apparent Authority.
occurs when either: (a) the agent believes he is entitled to
act because the action is necessary to carry out his express Feb 2017, Essay 5
authorized duties; (b) the agent has acted similarly in prior Feb 2013, Essay 6
dealings between the principal and agent; OR (c) it is Feb 2009, Essay 1
customary for agents in that position to act in that way. Feb 2005, Essay 7
• An agent has actual authority to act in accordance July 2004, Essay 5
with his reasonable understanding of his authority, July 2002, Essay 6
even if the principal later establishes that the agent was July 2001, Essay 1
mistaken. Silence or prior acquiescence by the principal may Feb 1997, Essay 4
give rise to the agent’s reasonable belief that he has authority July 1996, Essay 2
to perform similar acts in the future. Feb 1996, Essay 5
• If an agent acts within his scope of authority, the principal
will be will liable to a third-party on the contract, even if the
principal is undisclosed, partially disclosed, or unidentified.
■■ Apparent Authority
• A principal is bound to contracts entered into by its agent Feb 2017, Essay 5
HIGH if the agent has actual or apparent authority. Apparent Feb 2013, Essay 6
authority exists when: (1) a third-party reasonably believes Feb 2009, Essay 1
10 of 49 Exams
that the person/entity has authority to act on behalf of the Feb 2005, Essay 7
principal; AND (2) that belief is traceable to the principal’s July 2004, Essay 5
manifestations (the principal holds the agent out as having July 2002, Essay 6
authority). July 2001, Essay 1
o A principal holds an agent out as having authority Feb 1997, Essay 4
when he: (a) gives the agent a position or title July 1996, Essay 2
indicating certain authority; (b) has previously held Feb 1996, Essay 5
the agent out as having authority and has not published
a revocation of said authority; OR (c) has cloaked the
agent with the appearance of such authority.

01 AGENCY
• A principal will be bound to a contract even if the agent acted

on his own behalf or in violation of specific instructions
UNLESS the third party had notice the agent was exceeding
his authority. Apparent authority is NOT APPLICABLE
if the third-party has actual knowledge that the agent did
not have authority. Additionally, a third-party has a duty to
make further inquiry when the situation suggests that it may
be unreasonable to believe that the agent has authority.
• Unidentified/Partially Disclosed Principal: Apparent authority
MAY exist when the principal is partially disclosed or
unidentified (when the third-party knows the agent is acting
on behalf of a principal but does not know the identity of the
principal).
• Undisclosed Principal: Apparent authority CANNOT exist
when there is an undisclosed principal (when the third-party
does not know an agent is acting on behalf of a principal).
■■ Inherent Agency Power

• Under the Restatement (Second) of Agency, the Inherent Feb 2005, Essay 7
MED Agency Power (also known as inherent authority) protects July 2001, Essay 1
third-parties in certain situations when dealing with agents Feb 1996, Essay 5
3 of 49 Exams even if there is NO actual or apparent authority.
o The Inherent Agency Power is derived solely from
the agency relation (it is not derived from actual
authority, apparent authority, or estoppel), and exists
for the protection of persons harmed by or dealing
with an agent.
• Inherent Agency Power falls into two groups:
o The first group subjects an employer to liability
when: (1) the agent acts in furtherance of his
employer’s business; AND (2) his conduct harms a
third-party.
o The second group subjects the principal to contractual
liability when: (1) an agency relationship exists
between the principal and agent; AND (2) the agent
engages in acts that would normally be authorized,
but are not because he (a) violated the principal’s
instructions or (b) acted in his own interests.
• The concept of Inherent Agency Power was eliminated in the
Restatement (Third) of Agency.

01 AGENCY
MEE TIP
On the exam, DO NOT focus on Inherent Agency Power, unless
the question specifically asks you to or it’s obvious from the fact
pattern that the rule applies. Why? First, because the concept
was removed from the Restatement (Third) of Agency. Secondly,
the rule has been explicitly ignored on the MEE since 2005. For
example, the “Note” section of Feb. 2009 MEE (Essay 1, Point
Three) stated “Applicants should not receive any credit for
discussing inherent authority as that doctrine is not applicable
generally nor on the facts.” Further, on Feb. 2013 MEE (Essay
6, Point Three), the concept was not listed in the official part
of the answer and was again mentioned in the “Note” section,
which stated that the concept “may” be discussed, but that it
was inapplicable and “Only minimal credit should be given for
discussion of inherent agency power.”
■■ Ratification of Agent’s Contracts

• A principal’s ratification of an agent’s conduct will make the Feb 2017, Essay 5
MED principal liable for those contracts entered into by an agent Feb 2013, Essay 6
without authority. Ratification occurs when the principal: (1)
2 of 49 Exams has knowledge of all material facts or contract terms; AND
(2) thereafter manifests assent (approves) of the same
through words or conduct.
o Despite ratification by the principal, an agent also
remains liable for any acts or contracts entered into if
the principal was not disclosed to the third party.
• Under the Restatement (Second) of Agency, an undisclosed
principal generally CANNOT ratify an agent’s unauthorized
act because ratification requires that the agent purported to
act on the principal’s behalf. However, under the Restatement
(Third) of Agency, an undisclosed principal MAY ratify an
agent’s unauthorized act.
■■ Agent’s Contractual Liability

• Generally, an agent has NO contractual liability to a third- Feb 2017, Essay 5
HIGH party for a contracts entered into with that party if he: (1) Feb 2013, Essay 6
fully discloses the principal he is acting on behalf of (he July 2006, Essay 2
5 of 49 Exams
provides the name of the principal to the third-party); AND Feb 1997, Essay 4
(2) acts within the scope of his authority. Conversely, Feb 1996, Essay 5
an agent will be liable on the contract if his conduct was
unauthorized.

01 AGENCY
• An authorized agent will be liable to the third-party on

a contract when the principal is undisclosed (when the
third-party does not know the agent is acting on behalf of a
principal). Moreover, an undisclosed principal’s ratification
DOES NOT eliminate the agent’s liability to the third-party
on the contract.
• Unless otherwise agreed, an authorized agent will be liable to
the third-party on a contract when the principal is partially
disclosed or unidentified (when the third-party knows the
agent is acting on behalf of a principal but does not know the
identity of the principal).
• Where an agent is liable on a contract AND his conduct was
authorized, he may seek indemnification from the principal on
any payments he made to the third-party.
C. Vicarious Liability of Principal for an Agent’s Torts
MEE TIP
On the exam, use this checklist for solving a question concerning an
employer’s vicarious liability:
• Step 1: Is the person who committed the tort an employee?
o If the question states that the person is an employee,
you can skip this step.
o If it’s unclear if the person is an employee or
independent contractor, apply the “Employee
vs. Independent Contractor” rule.
• Step 2: If the person is an employee, determine if the tortious
act was committed within the scope of employment.
o See “Vicarious Liability of Employer: Doctrine of
Respondeat Superior” rule.
 If the act was within scope of employment,
then employer is liable.
 If the act was not within scope of
employment, then the employer is generally
not liable (but see exceptions in Step 3
below).
• Step 3: Do any exceptions apply to hold an employer
liable when the tort was not committed with the scope of
employment?
o See the “Vicarious Liability of Employer: Liability
Where Respondeat Superior Doctrine Inapplicable”
rule.
• Step 4: Is the principal liable for acts of the Independent
Contractor?

01 AGENCY
o See “Vicarious Liability for Acts of Independent

Contractors” rule.
 Generally, a principal is not liable.
 But, check if any exceptions apply.
■■ Employee vs. Independent Contractor

• An employer is vicariously liable for an employee’s July 2017, Essay 1
HIGH negligent acts if the employee was acting within the scope Feb 2015, Essay 1
of employment. However, a principal/employer is generally Feb 2006, Essay 2
5 of 49 Exams
NOT vicariously liable for the torts of an independent July 2004, Essay 5
contractor. Feb 2003, Essay 4
o An employee is an agent whom the employer controls
(or has the right to control) the manner and means of
the agent’s performance of work.
o An independent contractor is a person who contracts
with another to do something for him, but who is not
controlled nor subject to the other’s right to control
with respect to his performance. The contractor may
or may not be an agent.
• The determination of whether a person is an employee or an
independent contractor centers on whether the principal had
the right to control the manner and method in which the job
is performed.
o Generally, if the principal has substantial control
in dictating the manner and method in which the
job is performed, then the person is deemed to be
an employee of the principal. In contrast, a person
subject to less extensive control is considered an
independent contractor.
o Whether an employer-employee relationship exists
is a factual determination (the characterization of the
relationship by the parties is not determinative).
• The factors used to determine whether an agent is an
employee are: (1) the extent of control the principal may
exercise over the details of the work; (2) if the agent is
engaged in a distinct occupation or business; (3) the type of
work; (4) how the agent is paid (hourly or per project); (5)
who supplied the equipment or tools; (6) the degree of
supervision; (7) the degree of skill required; (8) whether the
job was part of the principal’s regular business; (9) the length
of time the agent is engaged by the principal; (10) whether
the principal and the agent believe that they are creating an
employment relationship; and (11) whether the person was
hired for a business purpose.

01 AGENCY
Vicarious Liability of Employer: Doctrine of Respondeat

■■
Superior
• Under the doctrine of respondeat superior, an employer is Feb 2015, Essay 1
HIGH vicariously liable for an employee’s negligent acts if the July 2013, Essay 2
employee was acting within the scope of employment. Feb 2010, Essay 4
• An employee acts within the scope of employment Feb 2006, Essay 2
5 of 49 Exams
when: (a) performing work assigned by the employer; OR Feb 2003, Essay 4
(b) engaging in a course of conduct subject to the employer’s
This is a cross-over
control. Factors to determine if conduct is within the rule with Torts, and
scope of employment include whether: (i) it’s the kind the has been listed in
both the Torts and
employee is employed to perform; (ii) it occurs substantially Agency subjects
within the authorized time and space limits; and (iii) it because it has
is motivated (in whole or part) by a purpose to serve the appeared on both
Agency and Torts
employer. Additionally, conduct is within the scope of essays. In recent
employment if it’s of the same general nature (or incidental) years when the rule
was tested, the essay
as the conduct authorized. Conduct is NOT outside the scope was designated as
of employment merely because an employee disregards the an “Agency & Torts”
employer’s instructions. cross-over question.
• An employee’s act is NOT within the scope of employment

when: (1) it occurs within an independent course of
conduct; AND (2) it is not intended by the employee to serve
any purpose of the employer.
• An employee’s intentional torts are generally NOT
within the scope of employment UNLESS the act: (a) was
specifically authorized by the employer; (b) was driven
by a desire to serve the employer; OR (c) was the result of
naturally occurring friction from the type of employment.
■■Vicarious Liability of Employer: Liability Where Respondeat

Superior Doctrine Inapplicable
• In certain situations, an employer may still be liable even if July 2013, Essay 2
MED the doctrine of respondeat superior (an employer/employee Feb 2003, Essay 4
relationship and conduct within the scope of employment)
2 of 49 Exams
is inapplicable. Such situations include when: (a) the
employer intended the conduct or consequences; (b) the
employer was negligent or reckless in selecting, training,
retaining, supervising, or controlling the employee; (c) the
conduct involved an employer’s non-delegable duty to an
injured person that it had a special relationship with; OR
(d) when (i) the employee had apparent authority, (ii)
the agent’s appearance of authority enables the agent
to commit the tort, and (iii) the third-party relied on that
authority. Apparent authority is created when the employer
holds the employee out as having authority and the third-party
reasonably believes the employee has authority to act.

01 AGENCY
■■ Vicarious Liability for Acts of Independent Contractors

• Generally, a principal is NOT vicariously liable for the torts July 2017, Essay 1
MED of an independent contractor. July 2004, Essay 5
• However, several exceptions exist, and a principal will be
2 of 49 Exams liable for torts committed by an independent contractor
if: (a) the independent contractor is engaged in an inherently
hazardous activity; (b) the duty owed by the principal is non-
delegable (i.e. the duty of care owed to an invitee); OR (c)
through the doctrine of estoppel when (i) the principal holds
the independent contractor out as his agent to a third-party,
(ii) the third-party reasonably relied on the care and skill of
the agent, and (iii) the third-party suffered harm as a result of
the agent’s lack of care or skill.
D. Fiduciary Duties Between Principal and Agent
■■ Fiduciary Duties Owed by the Agent to the Principal

• An agent owes the principal the following fiduciary duties Feb 2006, Essay 2
HIGH concerning matters within the scope of agency: (1) Duty of July 2002, Essay 6
Care – to use reasonable care when performing the agent’s July 2001, Essay 1
4 of 49 Exams
duties; (2) Duty of Loyalty – to act solely and loyally for Feb 1997, Essay 4
the principal’s benefit; AND (3) Duty of Obedience – to
obey all reasonable directions given by the principal and to
act in accordance with the express or implied terms of the
relationship.
• The principal has a claim against the agent when an
agent breaches any fiduciary duty owed. For example, an
agent will be liable to the principal for any payments the
principal made to a third-party when the agent breached his
duty to follow directions or acted outside the scope of his
authority. Additionally, the agent will be liable and must
account for any profit made in violation of the duty of loyalty.
• Conversely, an agent has NO liability to the principal when
the agent fulfills his fiduciary obligations and he acts within
the scope of his authority.

02 PARTNERSHIPS
UPA = Uniform Partnership Act
RUPA = Revised Uniform Partnership Act
RULPA = Revised Uniform Limited Partnership Act
MEE TIP
The subjects of Partnerships
and Agency are normally tested
A. Creation of Partnerships together on Essay questions.
■■ Creation of a General Partnership

• A General Partnership is created when (1) two or more Feb 2019, Essay 3
HIGH persons, (2) as co-owners, (3) carry on a business for July 2010, Essay 1
profit. No written agreement or formalities are required. A July 2009, Essay 8
7 of 49 Exams
person’s intent to form a partnership or be partners is NOT July 2007, Essay 4
required. July 2006, Essay 2
• Part ownership or common ownership of property alone is July 1999, Essay 2
NOT enough to create a partnership. Likewise, a joint venture July 1997, Essay 1
DOES NOT automatically create a partnership.
• A person who receives a share of the profits of the partnership
business is presumed to be a partner of the business
UNLESS the profits were received in payment: (a) of
a debt; (b) for wages as an employee or independent
contractor; (c) of rent; (d) of an annuity or other retirement
benefit; (e) of interest/loan charges; OR (f) for the sale of
the goodwill of a business.
• Individuals may inadvertently create a general partnership
despite their expressed subjective intent not to do so
(i.e. when the required formalities to form a Limited
Partnership or Limited Liability Partnership are not followed).
■■ Formation of a Limited Partnership (LP)

• A Limited Partnership is a partnership composed of July 2009, Essay 8
MED general and limited partners, and MUST have at least July 1999, Essay 2
one general partner. It is formed upon the filing of a
2 of 49 Exams Certificate of Limited Partnership with the Secretary of
State that includes: (1) the name of the partnership; (2) the
address of the partnership; (3) name and address of each
partner; (4) whether the partnership is a Limited Liability
Partnership; AND (5) it must be signed by a general partner.
• If the Certificate of Limited Partnership fails to meet the
above requirements, then a General Partnership is created.

02 PARTNERSHIPS
■■ Formation of a Limited Liability Partnership (LLP)

• A Limited Liability Partnership (LLP) is one in which all
MEE TIP
MED partners have limited personal liability. Any partnership may
become an LLP upon: (1) approval by the same vote that is Formation of an LP or LLP is
2 of 49 Exams necessary to amend the partnership agreement; AND (2) usually tested in conjunction
with a partner’s personal liability,
by filing a Statement of Qualification with the Secretary of especially when the LP or LLP
State. Unless otherwise agreed, a unanimous vote is required formation requirements are not
to amend a partnership agreement. followed.
o A Statement of Qualification must include: (i) the
name and address of the partnership; (ii) a statement Feb 2014, Essay 6
that the partnership elects to become an LLP; AND Feb 2012, Essay 6
(iii) a deferred effective date, if any. The name of
a LLP must end with “Registered Limited Liability
Partnership”, “Limited Liability Partnership”,
“R.L.L.P.”, “L.L.P.”, “RLLP,” or “LLP”.
• The filing of a Statement of Qualification DOES NOT
create a new partnership. Instead, the LLP continues
to be the same partnership entity that existed prior to the
filing. Thus, the LLP remains liable for any unfulfilled
obligations of the partnership entity before it became an LLP.
B. Power and Liability of Partners
■■ Authority to Bind the Partnership

• Each partner is an agent of the partnership, and generally Feb 2019, Essay 3
HIGH has authority to bind the partnership for the purpose of its Feb 2016, Essay 3
business (including entering into contracts). Feb 2014, Essay 6
8 of 49 Exams
• A partner has express actual authority to bind the July 2007, Essay 4
partnership upon receiving said authority from the July 2006, Essay 2
partners. Acts within the ordinary course of the partnership July 2003 Essay 5
business need only be approved by a majority of the Feb 2001, Essay 2
partners. Acts outside the ordinary course of business must July 1997, Essay 1
be approved unanimously. If the partnership agreement
is silent on the scope of the partner’s authority, a partner
has authority to bind the partnership to usual and customary
matters, UNLESS the partner knows that: (a) other partners
might disagree; OR (b) for some other reason consultation
with fellow partners is appropriate. Hiring an employee is
normally within the ordinary course of partnership business,
unless the partnership agreement states otherwise.
• A partner has implied actual authority (also known as
incidental authority) to take actions that are reasonably
incidental or necessary to achieve the partner’s authorized
duties.

02 PARTNERSHIPS
• A partner has apparent authority to bind the partnership

for all acts apparently conducted within the ordinary course
of the partnership business OR the kind carried on by the
partnership. However, a partner’s act will NOT bind the
partnership if: (1) the partner lacked authority; AND (2) the
third-party knew (actual knowledge) or had notice that the
partner lacked authority.
• An act or transaction is within the ordinary course of business
if it is normal and necessary for managing the business –
a person would reasonably conclude the act is directly and
necessarily embraced within the partnership business.
■■ Authority to Bind a Partnership After Dissolution

• After dissolution, a partner’s actual authority to bind the July 2011, Essay 9
MED partnership is limited only to those acts appropriate for Feb 2004, Essay 6
winding up the partnership business. However, a partner July 1997, Essay 1
3 of 49 Exams has apparent authority to bind the partnership even after
dissolution if: (1) the partner’s acts would have normally
bound the partnership; AND (2) the third-party did not have
notice of the dissolution.
• If the partnership is bound, then ALL partners will be jointly
and severally liable for the partnership’s obligation. Any
partner that pays more than their proportionate share of their
obligation to a third-party may seek contribution from the
other partners.
• Under the Revised Uniform Partnership Act (RUPA), a
person winding up a partnership’s business may: (1) preserve
the partnership business or property as a going concern
for a reasonable time; (2) prosecute and defend actions
and proceedings; (3) settle and close the partnership’s
business; (4) dispose of and transfer the partnership’s
property; (5) discharge the partnership’s liabilities; (6)
distribute the assets of the partnership; (7) settle disputes by
mediation or arbitration; and (8) perform other necessary
acts.
■■ Personal Liability of General Partners & Judgment Enforcement

• Personal Liability: General Partners are personally liable Feb 2014, Essay 6
HIGH for ALL obligations of the partnership UNLESS otherwise Feb 2012, Essay 6
agreed by the claimant or provided by law. July 2011, Essay 9
8 of 49 Exams
o Under the Uniform Partnership Act (1997), general July 2009, Essay 8
partners are jointly and severally liable for partnership July 2007, Essay 4
obligations, which means that a claimant can collect July 2006, Essay 2
the full amount of the debt from any one of the Feb 2001, Essay 2
partners. However, a partner may seek contribution July 1997, Essay 1

02 PARTNERSHIPS
from the other partners if he pays more than his MEE TIP
proportionate share of the partnership obligation.
o Under the Uniform Partnership Act (1914), general Apply the rule for Incoming
Partners if the fact pattern
partners are only jointly liable (not jointly and touches upon the personal
severally liable), which means that a plaintiff must liability of an incoming
join all partners in an action. partner. Apply the rule for
Judgment Enforcement when a
• Incoming Partners: Incoming partners admitted into an creditor is attempting to enforce
existing partnership are NOT liable for obligations incurred a judgment against a partner’s
personal assets.
prior to their admission, even if the incoming partner has
notice of a claim. Even though that partner is not personally
liable for the debts of the partnership, he is still at risk of
losing any capital contributions he made to the partnership
that are used to satisfy partnership obligations.
• Judgment Enforcement Against a Partner’s Personal
Assets: Generally, a judgment creditor CANNOT levy
execution of the judgment against a partner’s personal assets
for a partnership debt UNLESS: (1) a judgment has been
rendered against the partner; AND (2) the partnership assets
have been exhausted or are insufficient.
o Under the Uniform Partnership Act, a judgment
against the partnership is NOT by itself a judgment
against the individual partners. However, a judgment
may be sought against the partnership and the
individual partners in the same action.
■■ Personal Liability of Limited Partners

• Generally, limited partners are NOT personally liable for Feb 2007, Essay 6
MED obligations of the Limited Partnership (LP). However, Feb 2000, Essay 2
certain exceptions to this rule exist. Feb 1999, Essay 2
3 of 49 Exams • First, limited partners are ALWAYS liable for their own
misconduct or when they sign a personal guarantee for an
obligation.
• Second, even if a partner is not personally liable for the
debts of the partnership, he is at risk of losing any capital
contributions he made to the partnership.
• Third, a limited partner MAY become personally liable if
that partner participates in the management or control of
the business. If a limited partner’s control and management
activities are so extensive as to be substantially the same
as those of a general partner, then some jurisdictions have
held the partner to be liable in the same manner as a general
partner. Whether the limited partner is liable (and the extent
of the liability) depends on the applicable Act enacted in the
jurisdiction.

02 PARTNERSHIPS
o Under the latest Uniform Limited Partnership Act

(2001), limited partners are NOT personally liable
for an obligation of the LP, and liability is NOT
created when the limited partner participates in the
management or control of the business.
o Under earlier versions of the Uniform Limited
Partnership Act, participation in the management or
control of the business subjected the limited partner
to personal liability for the LP’s obligations. In
jurisdictions that follow the earlier versions,
participating in the removal of a director is NOT
considered to be participating in management and
control.
o Under RULPA, a limited partner will become liable
for the obligations of the LP if he participates in the
control of the business. However, that limited partner
is liable only to persons who transact business with
the LP reasonably believing that the limited partner
is a general partner (based upon the limited partner’s
conduct).
o The RULPA Safe Harbor Provision sets forth certain
activities that DO NOT constitute the exercise of
control and management, which include: (1) being
a contractor for, or an agent, employee, general
partner of the LP; (2) being an officer, director, or
shareholder of a corporation that is a general partner
of the LP; (3) advising or consulting with a general
partner concerning the business of the LP; (4)
acting as surety or guaranteeing an obligation of the
limited partnership; (5) bringing a derivative action
in the right of the LP; (6) requesting or attending a
meeting of partners; (7) proposing, approving, or
disapproving the following matters: (i) the dissolution
and winding up of the LP; (ii) the sale, exchange,
lease, mortgage, pledge, or other transfer of all (or
substantially all) of the assets of the LP; (iii) the
incurrence of indebtedness by the LP other than in the
ordinary course of its business; (iv) a change in the
nature of the business; (v) the admission or removal
of a general partner; (vi) the admission or removal
of a limited partner; (vii) a transaction involving
an actual or potential conflict of interest between a
general partner and the LP or the limited partners; and
(viii) an amendment to the partnership agreement or
certificate of limited partnership.

02 PARTNERSHIPS
■■ Personal Liability of Limited Liability Partners

• An obligation incurred by a Limited Liability Partnership Feb 2016, Essay 3
MED (LLP) is solely the obligation of the LLP. Under RUPA, Feb 2014, Essay 6
a partner in an LLP is NOT liable for partnership Feb 2012, Essay 6
3 of 49 Exams obligations.
• However, certain exceptions to this rule exist. First, partners
are ALWAYS liable for their own misconduct or when
they sign a personal guarantee for the obligation. Second,
even if a partner is not personally liable for the debts of the
partnership, he is at risk of losing any capital contributions
he made to it. Third, obligations incurred before a
partnership becomes an LLP are treated as obligations of the
prior partnership entity (i.e. general partnership or limited
partnership).
C. Rights of Partners Among Themselves
■■ Sharing of Profits and Losses

• Unless otherwise agreed, profits are shared equally between Feb 2004, Essay 6
LOW partners, and losses will be shared in the same ratio as
profits. If an agreement is only made to how losses are shared
1 of 49 Exams
(no matter the ratio), then profits will be shared equally. Any
partner who pays more than his fair share in partnership losses
is entitled to receive a contribution from the other partner(s)
for their proportional share of the losses.
■■ Right to Management & Control

• Unless otherwise agreed, each partner has equal rights in Feb 2019, Essay 3
MED the management and control of the partnership business. Feb 1995, Essay 4
• Disagreements as to ordinary partnership business need only
2 of 49 Exams be approved by a majority of the partners, but acts outside the
ordinary course of business must be approved unanimously
by the partners. Hiring an employee is normally within the
ordinary course of partnership business (unless the partnership
agreement states otherwise).
■■ Transfer of Ownership Interest in a Partnership

• A partner can only transfer: (1) his interest in the share July 2010, Essay 1
MED of the profits and losses; AND (2) his right to receive July 2008, Essay 3
distributions. All other incidents of partnership ownership Feb 2002, Essay 3
3 of 49 Exams (such as the right to access partnership property, the right
to inspect books and records, and the right to participate in

02 PARTNERSHIPS
management of the partnership) belong to the partnership and

CANNOT be transferred. The partnership does not need to
give effect to a transferee’s rights until the partnership has
proper notice of the transfer of ownership.
• Unless a written partnership agreement states otherwise,
ALL partners must consent for a transferee of a partnership
interest to become a partner in the business. If the transferee
becomes a partner, he may be liable for partnership
obligations arising after their admittance, depending on the
type of partnership entity (i.e. general partnership, limited
partnership, limited liability partnership).
■■ Right to Partnership Property

• A partnership is a distinct legal entity from its partners. All July 2010, Essay 1
MED property acquired by a partnership OR with partnership July 2008, Essay 3
assets is owned by the partnership (not the partners July 1999, Essay 2
3 of 49 Exams individually). Instead, partners only have an equal right
to use partnership property for partnership purposes. Any
personal use of the property requires the consent of the other
partners.
• Property acquired in the name of a partner is presumed to
be separate property (even if used for partnership purposes)
as long as: (1) no partnership assets are used to acquire
the property; AND (2) no written title instrument for the
property references the partnership or that the person is
partner.
• Under the Uniform Partnership Act, a judgment solely
against an individual partner (and not the partnership)
CANNOT be satisfied with partnership property because
an individual partner has no ownership interest in the
partnership’s property. However, judgment creditors MAY
seize the partner’s financial interest in the partnership.
■■ Remuneration (Payment for Partner’s Services)

• A partner is NOT entitled to remuneration (payment) for Feb 2001, Essay 2
LOW services performed for the partnership UNLESS: (a) there is
an agreement to the contrary; OR (b) it is for the reasonable
1 of 49 Exams
compensation of services rendered in winding up the
business of the partnership. Some courts have permitted
remuneration based on an implied agreement to compensate a
partner.

02 PARTNERSHIPS
■■ Partnership Ownership of Inventions

• Unless otherwise agreed, a partner or agent employed to do Feb 1998, Essay 1
LOW non-inventive work is personally entitled to patents which
are the result of his invention (even if the invention concerns
1 of 49 Exams
the work in which he is employed). However, the partnership
is entitled to the patent when: (a) partnership facilities or
business time is used to create the invention; OR (b) the
partner is employed to do inventive work.
■■ Advance of Funds to the Partnership & Reimbursement

• A partnership shall reimburse a partner for an advance to Feb 2001, Essay 2
LOW the partnership beyond the amount of capital the partner
agreed to contribute. If the partnership has insufficient
1 of 49 Exams
funds to reimburse the partner, the partner has the right to be
reimbursed for a portion of the contribution from the other
general partners based on each’s percentage of ownership.
D. Special Rules Concerning Limited Partnerships
■■ Management & Control in a Limited Partnership

• A Limited Partnership (LP) is composed of general and Feb 2002, Essay 3
MED limited partners. General partners of a LP have full Feb 2000, Essay 2
management rights and control the partnership business to
2 of 49 Exams the exclusion of the limited partners. Limited partners have
NO say or control as to how the partnership is run, and they
DO NOT have the right to manage or control the day-to-day
business of the partnership. Limited partners are generally
passive, and have voting rights only in extraordinary
situations, such as the sale of the partnership (or all of its
assets), amending the partnership agreement, or admitting a
new partner.
■■ Limited Partner’s Right to Inspect Records

• Under RULPA, a limited partner has the right during normal Feb 2007, Essay 6
MED business hours to inspect and copy any information that Feb 2002, Essay 3
the Limited Partnership (LP) is legally required to keep. In
2 of 49 Exams addition, a limited partner may obtain upon a reasonable
demand: (1) true and full information regarding the state of
the business and financial condition; (2) copies of the LP’s
tax returns; and (3) any other information regarding the
affairs of the LP that is just and reasonable.
• These rights may be exercised for any purpose. Seeking to
obtain documents because of suspicion of mismanagement or
self-dealing is considered a just and reasonable demand.

02 PARTNERSHIPS
E. Duties Owed by Partners
■■ Duty of Care
• A partner owes the fiduciary duty of care to the partnership Feb 2016, Essay 3
HIGH and the other partners, but this duty is limited. Under the July 2003, Essay 5
RUPA, a partner is only in breach of the duty of care when Feb 2000, Essay 2
4 of 49 Exams
he engages in: (a) grossly negligent or reckless conduct; (b) Feb 1998, Essay 1
intentional misconduct; OR (c) a knowing violation
of law. If a partner breaches this duty, he may be held
personally liable to the partnership for any losses suffered as
a result. Partners in a Limited Partnership have similar duties
as partners in a General Partnership.
• A partner has been found to breach the duty of care in the
following situations: (i) violating an agreement or policy
of the partnership; (ii) failing to thoroughly investigate
facts before entering into a contract, if it rises to the level of
gross negligence; and (iii) acting outside the scope of the
partnership business without the consent of the other partners.
• Limited liability rules for Limited Liability Partnerships
and Limited Partners are NOT applicable to claims against
partners for breach of their duties owed to the partnership.
■■ Duty of Loyalty
• Partners owe the fiduciary duty of loyalty to the partnership Feb 2018, Essay 6
HIGH and the other partners, which requires partners to act in the Feb 2016, Essay 3
best interests of the partnership. Feb 2000, Essay 2
6 of 49 Exams
• Under RUPA, a partner must: (1) account for any property, Feb 1999, Essay 2
profit, or benefit derived by the partner from the partnership Feb 1998, Essay 1
property or business (this includes the obligation to refrain Feb 1995, Essay 4
from appropriating partnership opportunities or assets for
personal use); (2) not have an interest adverse (conflict
of interest) to the partnership (i.e. partners cannot engage
in unfair transactions with the partnership); AND (3)
not compete with the partnership (unless the partnership
agreement allows the partner to do so). The above duties
still apply after dissolution during the winding up process
(except for the duty not to compete). Partners in a Limited
Partnership have similar duties as partners in a General
Partnership.
oo A partnership opportunity is one that is (1) closely
related to the entity’s existing or prospective line
of business, (2) that would competitively advantage
the partnership, AND (3) that the partnership has the
financial ability, knowledge, and experience to pursue.

02 PARTNERSHIPS
• HOWEVER, a partner is NOT liable for conduct that would

otherwise violate the duty of loyalty if: (1) the partner
fully discloses the information; AND (2) either (a) the
Partnership Agreement is amended or (b) all partners
consent to the transaction. Unless agreed otherwise, the
Partnership Agreement may be amended at any time with a
unanimous vote of the partners. An interested partner should
abstain from voting to amend the Partnership Agreement to
allow for conduct that would otherwise violate the duty of
loyalty.
• If a partner breaches his duty of loyalty, he may be held
personally liable to the partnership for any losses suffered as
a result. If reasonable, a partnership agreement may eliminate
or alter a partner’s duty of loyalty.
■■ Duty to Provide Full Information

• Under the Uniform Partnership Act (UPA), partners Feb 2018, Essay 6
MED shall render, on demand by any partner, the true and full July 2003, Essay 5
information of all things affecting the partnership. Feb 2000, Essay 2
3 of 49 Exams • Under the Revised Uniform Partnership Act (RUPA), a
partner shall disclose without demand full information
concerning the partnership’s business and affairs (if access
to such information would be reasonably required for other
partners to properly exercise their rights and duties). This
duty is encompassed within a partner’s obligation of good
faith and fair dealing. If a partner breaches this duty, he may
be held personally liable to the partnership for any losses
suffered as a result.
• Partners in a Limited Partnership have similar duties as
partners in a general partnership.
■■ Action Against a Partner for Misconduct

• The duty of loyalty and care are owed to both the partnership Feb 2016, Essay 3
LOW and the other partners. Thus, the partnership can maintain
an action against a partner for violating his fiduciary duties to
1 of 49 Exams
the partnership. Additionally, a partner can maintain a direct
action against another partner (with or without an accounting)
to enforce the partner’s rights, including an action for
violation of a fiduciary duty. A partner CANNOT maintain
a derivative action on behalf of the partnership because they
are not permitted under RUPA.

02 PARTNERSHIPS
F. Dissociation and Dissolution
■■ Dissociation (Withdrawal of a Partner)

• A partner becomes dissociated from the partnership upon: Feb 2019, Essay 3
HIGH (1) notice of the partner’s express will to withdraw; (2) Feb 2018, Essay 6
occurrence of an agreed upon event in the partnership July 2011, Essay 9
4 of 49 Exams
agreement; (3) expulsion pursuant to the partnership July 1998, Essay 2
agreement; (4) expulsion by the unanimous vote of the
The July 1998 MEE
other partners if it’s (a) unlawful to carry on the partnership (Essay 2, Point Two)
business with that partner, or (b) there has been a transfer discusses dissolution,
of all or substantially all of that partner’s transferable but RUPA changed
the terminology to
interest in the partnership (other than a transfer for security “dissociation” in this
purposes); (5) judicial expulsion; (6) bankruptcy; (7) context.
incapacity or death; (8) appointment of a personal
representative or receiver; OR (9) termination of an entity
partner (who is not an individual, partnership, corporation,
trust, or estate).
• A partner may dissociate (withdraw) from the partnership at
any time by providing notice to the other partners. However,
a dissociation will be deemed wrongful if: (a) it is in breach
of an express provision of the partnership agreement; OR
(b) if the partnership is for a definite term or particular
undertaking, AND the partner (i) withdraws, (ii) is expelled
by judicial determination, or (iii) is dissociated by becoming a
debtor in bankruptcy.
• A partner who wrongfully dissociates CANNOT participate
in management or the winding up process. Additionally, that
partner is liable to the other partners and the partnership for
any damages caused by his dissociation.
■■ Dissolution of a General Partnership
• Unless there is an agreement to the contrary, dissolution Feb 2019, Essay 3
HIGH occurs upon: (a) notice of the partner’s express will to Feb 2018, Essay 6
withdraw; (b) an event agreed to in the partnership July 2011, Essay 9
8 of 49 Exams
agreement; (c) an event that makes it unlawful for all or July 2008, Essay 3
substantially all of the business to continue; (d) judicial Feb 2004, Essay 6
dissolution on application of a partner that (i) the economic Feb 2000, Essay 2
purpose of the partnership is likely to be unreasonably July 1999, Essay 2
frustrated, (ii) another partner has engaged in conduct making July 1998, Essay 2
it not reasonably practicable to carry on the business with that
partner, or (iii) it is not reasonably practicable to carry on the
business in conformity with the partnership agreement; OR
(e) judicial dissolution on application of a transferee (of a
partner’s transferable interest) that it is equitable to wind up

02 PARTNERSHIPS
the business and either (i) it is a partnership at will, or (ii) at

the expiration of the term or completion of the undertaking
(if the partnership was for a definite term or particular
undertaking).
• In addition to the above, dissolution of a Partnership for
a Definite Term also occurs: (a) within 90 days after a
partner’s dissociation by death or wrongful dissociation, if
it is the express will of at least half of the remaining partners
to wind up the business (a partner’s rightful dissociation
constitutes the expression of that partner’s will to wind
up the partnership business); (b) upon the express will
of all partners to wind up the business; OR (c) upon the
expiration of the term or the completion of the purpose of the
partnership.
• A partner may dissociate (withdraw) from the partnership at
any time by providing notice to the other partners. MEE TIP
o Under the Revised Uniform Partnership Act (as
On an essay question concerning
amended in 2013), dissolution may be rescinded by Dissolution caused by the
the affirmative vote or consent of the remaining Withdrawal of a Partner, apply
partners. In such instance, the business would be the RUPA (as amended in 2013)
rule, unless the essay question
continued, and the dissociating partner is entitled to a states that the jurisdiction
buyout of their interest. The buyout price is the value follows RUPA (1997) or UPA
of the partnership interest based on the greater of the (1914). In such instance, apply
liquidation or going concern value (plus interest). If the appropriate rule for that
jurisdiction.
the dissociating partner makes a written demand and
no agreement for the purchase of the interest is made
within 120 days, the partnership shall pay in money
the amount it estimates to be the buyout price plus
accrued interest.
o Under the Revised Uniform Partnership Act (1997),
the dissociation (withdrawal) of a partner does not
necessarily cause a dissolution and winding up of the
business of the partnership. A wrongful dissociation
allows ALL of the remaining partners (including those
who are rightfully dissociated) to waive winding-
up and termination of the partnership, and instead
choose to continue the partnership by buying out the
dissociated partner’s interest in the partnership. If a
partner’s dissociation is NOT wrongful, then he will
be allowed to vote on whether to waive winding-up
and termination of the partnership. In either case, the
partners MAY choose to continue the business for a
reasonable amount of time.
o Under the Uniform Partnership Act (1914), a
partner’s withdrawal results in dissolution of the
partnership, regardless of whether it was rightful

02 PARTNERSHIPS
or wrongful. However, ALL partners who have not

wrongfully caused the dissolution may choose to
continue the business in the same name.
• Upon dissolution, the partnership is NOT terminated, but
continues until the winding up of partnership affairs is
completed. Winding up is the process of settling partnership
affairs after dissolution. The partners’ rights, duties, and
powers continue during the winding up process. The
partnership is terminated when the winding up of its business
is completed.
■■ Dissolution of a Limited Partnership

• A non-judicial dissolution of a Limited Partnership (LP) Feb 2000, Essay 2
LOW occurs upon: (a) the happening of an event specified in
the partnership agreement; (b) the consent of all general
1 of 49 Exams
partners and of limited partners owning a majority of the
rights to receive distributions; (c) after the dissociation of a
general partner either (i) upon consent of partners owning
a majority of the rights to receive distributions as partners
(if the LP has at least one remaining general partner), or (ii)
the passage of 90 days after the dissociation if the LP does
not have a remaining general partner (unless the LP admits
at least one general partner); (d) 90 days after dissociation
of the last limited partner, unless the LP admits at least
one limited partner; OR (e) the filing of a declaration
of administrative dissolution by the Secretary of State
for the partnership’s failure to pay fees or abide by filing
requirements.
■■ Winding Up & Termination of the Partnership

• Upon dissolution, the partnership is NOT terminated, but Feb 2000, Essay 2
MED continues until the winding up of partnership affairs is July 1999, Essay 2
completed. Winding up is the process of settling partnership
2 of 49 Exams affairs after dissolution. The partnership is terminated when
the winding up of its business is completed.
• During the winding up process, partnership assets
are converted to cash and then distributed in the
following order: (1) creditors; (2) partners’ capital
contributions; and (3) profits to be distributed among the
partners. Some jurisdictions require that the debts owed
to non-partner creditors (outside creditors) be paid before
the debts owed to partner creditors (inside creditors). If
partnership assets are insufficient to pay the liabilities of the
partnership, the loss will be divided among the partners.

03 CORPORATIONS & LLC’S
RMBCA = Revised Model Business Corporation Act
RULLCA = Revised Uniform Limited Liability Company Act
A. Formation of a Corporation
MEE TIP
If an essay question says to apply
■■ Formation of a Corporation (Articles of Incorporation) the Model Business Corporation
Act (MBCA), then apply the
• Under the RMBCA, a corporation’s existence begins on the RMBCA as it’s the most recent
MED date the Articles of Incorporation are filed with the Secretary version of the MBCA. On the
exam, MBCA and RMBCA have
of State, UNLESS a delayed effective date is specified. The been used interchangeably.
2 of 49 Exams RMBCA DOES NOT allow for an earlier effective date to
be specified because a corporation CANNOT exist until the July 2018, Essay 6
Articles of Incorporation are properly filed. Feb 2011, Essay 7
• The Articles of Incorporation MUST contain: (1) the
corporate name; (2) the number of shares the corporation
is authorized to issue; (3) the address of the corporation’s
initial registered office and the name of its initial registered
agent at that office; AND (4) the name and address of each
incorporator.
• A legally formed corporation is called a de jure corporation.
■■ Bylaws
• The Bylaws are the rules and regulations adopted by the July 2014, Essay 6
MED Board of Directors that govern the internal operations and July 2010, Essay 9
management of a corporation, including the roles and duties
2 of 49 Exams of directors and officers. Under the RMBCA, the Bylaws
may contain any provision that is NOT inconsistent
with: (a) the Articles of Incorporation; OR (b) the law of the
jurisdiction.
• When there is a conflict between the Articles of
Incorporation and the Bylaws, the Articles of Incorporation
control. In addition, the Articles of Incorporation may give
certain powers only to the shareholders (and limit certain
powers of the directors). The inclusion of director-nomination
procedures in the Bylaws is allowed under the RMBCA and
Delaware law.

■■ Amending the Bylaws

• The Bylaws may be amended or repealed by July 2014, Essay 6
LOW shareholders. In addition, the Board of Directors may
also amend or repeal the bylaws UNLESS: (a) the Articles
1 of 49 Exams
of Incorporation exclusively reserves the power to the
shareholders; OR (b) the shareholders, in amending/
adopting/repealing a bylaw, expressly provide that the Board
of Directors cannot amend/repeal/reinstate that bylaw. If the
bylaw deals with director-nomination procedures, the Board
of Directors retain power to safeguard the voting process, but
it CANNOT repeal a shareholder approved bylaw.
■■ Powers of a Corporation
• Under the RMBCA (and most states), a corporation has July 1999, Essay 7
LOW the power to do all things necessary or convenient to
carry out its business and affairs, including: (1) to sue
1 of 49 Exams
and be sued; (2) to own, lease, or convey real or personal
property; (3) to make contracts, borrow money, issue notes
or bonds; (4) to lend money and make investments; (5) to
own or be involved with another business entity; (6) to fix
the compensation of directors, officers, and employees; (7)
to lend directors, officers, employees money; (8) to make
charitable donations; (9) to make payments or donations that
furthers the business and affairs of the corporation; and (10)
to pay or engage in lobbying to aid governmental policy.
B. Formation of a Limited Liability Company (LLC)
■■ Formation of an LLC
• Generally, a Limited Liability Company (LLC) is formed Feb 2019, Essay 3
LOW when: (1) the Articles of Organization (a.k.a. Certificate of
Formation) is properly filed with the Secretary of State; AND
1 of 49 Exams
(2) the company has at least one member.
• Unless stated otherwise, the Operating Agreement
governs: (1) the relations between the members and the
LLC; (2) the rights and duties of managers; (3) the activities
and affairs of the company; AND (4) any means and
conditions for amending the Operating Agreement.

C. Pre-Formation Contract Liability MEE TIP

■■ Liability of Promoter for Pre-Incorporation Contracts Although the area of pre-
formation contracts for LLC’s
• A promoter is a person who acts on behalf of a corporation is unresolved, generally the
MED that has not yet been formed. Under the RMBCA, a person is same principles apply whether
the entity to be formed is a
personally liable for any liabilities arising from their conduct corporation or an LLC.
3 of 49 Exams when (1) he purports to act as or on behalf of a corporation,
(2) knowing that no corporation was formed (actual Feb 2011, Essay 7
knowledge is required). If multiple promoters are liable, then July 2005, Essay 2
each will be jointly and severally liable. A promoter remains July 1999, Essay 7
personally liable for pre-incorporation contracts even if
the corporation subsequently adopts the contract. In such a
situation, both the corporation and the promoter are liable.
• However, a promoter will NOT be liable if: (a) there is a
subsequent novation (an agreement by all parties to substitute
the corporation for the promoter and to relieve the promoter
of the contractual obligation); OR (b) the contract explicitly
provides that the promoter has no personal liability on the
contract.
• If the promoter is liable to a third-party, he will normally be
entitled to indemnification from the corporation (unless he
violated a fiduciary duty in entering the contract).
■■ Liability of Corporation for Pre-Incorporation Contracts

• A corporation is NOT liable on pre-incorporation contracts July 2005, Essay 2
MED entered into by a promoter UNLESS the corporation expressly July 1999, Essay 7
or impliedly adopts the contract post-incorporation. A
2 of 49 Exams corporation may expressly adopt a pre-incorporation
contract (i.e. by Board of Director action or by reference in
the corporation’s formation documents). Implied adoption
occurs when the corporation: (1) has reason to know or
knows the material terms of the contract; AND (2) accepts
some benefit from the contract.
■■ Defective Incorporation & Owner Liability

• If corporate formation is defective, then the owners may July 2018, Essay 6
LOW be subject to personal liability for contracts or obligations
under general partnership principles (since the owners are
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personally liable for ALL obligations of the partnership). If
there is only one owner, similar personal liability would arise
under sole-proprietorship principles.
• However, a person’s liability may be LIMITED under any of
the following ways:

o Under the RMBCA, a person is only personally liable

for liabilities arising from their conduct when (1) he
purports to act as or on behalf of a corporation, (2)
knowing that no corporation was formed (actual
knowledge is required). An erroneous “good faith”
belief that the corporation was properly formed
WILL NOT subject the person to liability. If multiple
persons are liable, then each will be jointly and
severally liable.
o Under the De Facto Corporation doctrine, a
defective corporation enjoys the same benefits
and powers of a properly formed corporation –
including limited liability. A de facto corporation
exists where the entity: (1) made a good faith
attempt to incorporate; (2) is otherwise eligible to
incorporate; AND (3) took some action indicating
that it considered itself a corporation. HOWEVER,
only a person who was unaware that the corporation
was not properly formed may assert the de facto
corporation doctrine.
o Under the Incorporation by Estoppel doctrine,
any person or entity that treated a business as a
corporation may be estopped from denying that the
business is corporation, even if a valid corporation
was NOT formed. The doctrine of incorporation
by estoppel applies to BOTH: (a) third-parties that
treated the business as a corporation; and (b) an entity
that held itself out as a corporation and benefited from
that claim. HOWEVER, the incorporation by estoppel
doctrine DOES NOT apply to tort actions.
• The defective incorporation principles above apply to both
active and inactive participants of the business
D. Personal Liability & Piercing the Veil
■■ Personal Liability & Piercing the Veil

• Generally, shareholders, directors, and officers are NOT July 2013, Essay 6
HIGH personally liable for the liabilities and obligations of the July 2012, Essay 8
corporation. However, courts may disregard the corporate July 2007, Essay 9
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form and hold individual corporate shareholders, directors, Feb 2003, Essay 7
and officers personally liable for actions taken on behalf of Feb 1998, Essay 6
the corporate entity. A court will pierce the corporate veil
and hold the shareholders personally liable in the following
situations: (1) the corporation is acting as the alter ego of the

shareholders – where there is little or no separation between

the shareholder and the corporation (i.e. where an individual
utilizes the corporate form for personal reasons); (2) where
the shareholders failed to follow corporate formalities; (3)
the corporation was inadequately capitalized at its inception
to cover debts and prospective liabilities; OR (4) to prevent
fraud.
• A court is more likely to pierce the corporate veil for tort
actions rather than contract disputes. Normally, passive
investors who do not participate in the business will NOT be
held liable, even if the court pierces the veil. The same factors
are applied to hold a parent company liable for the acts of its
subsidiary.
• Courts will generally apply the same factors above to
pierce the veil of a Limited Liability Company and hold
members or managers personally liable, BUT the failure to
follow formalities is not a ground for piercing the LLC veil.
• Even if a court does not pierce the veil, a person is always
personally liable for their own torts (i.e. negligence), even
while acting as an agent for a corporation or organization.
E. Corporate Finance
■■ Common & Preferred Shares

• Under the RMBCA, if the Articles of Incorporation authorize Feb 2000, Essay 7
LOW the issue of only one class of shares, it is not necessary to
provide a designation for said shares. It’s understood that
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those shares will have both the power to vote and the
power to receive the net assets of the corporation upon
dissolution.
• If more than one class or series of shares is authorized,
then the terms, preferences, rights, and limitations of
each class of shares MUST be described in the Articles
of Incorporation. All shares within a class or series
must have the same rights, privileges, restrictions, and
responsibilities. However, the RMBCA, allows variations
within a class/series if it’s expressly set forth in the Articles of
Incorporation.
• Generally, Common Shares provide shareholders with
voting rights, although they are the last in priority to be
entitled to a distribution of company assets. Shareholders
with Preferred Shares are generally entitled to be paid out

from company assets upon dissolution before shareholders

with common shares. However, Preferred Shares usually do
not carry voting rights. In order for the corporation to issue
Preferred Shares, the same must be described in the Articles
of Incorporation. A class of shares with preferential dividend
rights is entitled to receive dividends or distributions before
other classes.
■■ Authorized, Outstanding, & Reacquired Shares

• Authorized shares are the maximum number of shares July 2010, Essay 9
MED a corporation may issue, as set forth in the Articles of Feb 2000, Essay 7
Incorporation. A corporation is NOT allowed to issue more
2 of 49 Exams shares than authorized. To increase the number of shares
allowed to be issued: (1) the Articles of Incorporation must
be amended; (2) the changes must be adopted by the Board
of Directors; AND (3) the changes must be approved by a
majority vote of the shareholders.
• Outstanding shares are the total number of shares issued
by the corporation and held by the shareholders. Under the
RMBCA, each outstanding share is entitled to one vote
(regardless of class), UNLESS otherwise provided in the
Articles of Incorporation.
• Reacquired shares by the corporation (also called treasury
shares) are considered authorized shares, but are not
outstanding shares of the corporation. These reacquired
shares are NOT allowed to be voted at a shareholders
meeting.
■■ Consideration in Exchange for Shares

• Under the RMBCA, shares may be issued in Feb 2000, Essay 7
LOW exchange for almost any type of consideration,
including: money; tangible or intangible property; past
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performance of services to the corporation (including services
in establishing the corporation); and future promises of
service (i.e. stock options) or payment of money/property to
the corporation.
o Some states only allow shares to be issued in exchange
for cash, property, or services previously rendered.
• The Board of Directors may determine the value of any non-
monetary consideration given, and absent fraud or bad faith,
their determination is conclusive on the issue. The value
determined is important in the context of a corporation whose
Articles of Incorporation set a par value for shares, as shares
CANNOT be issued for less than par value in that instance.

■■ Dividends & Distributions to Shareholders

• Decisions to declare dividends or make distributions to Feb 2010, Essay 5
MED shareholders are within the discretion of the Board of Feb 2005, Essay 1
Directors, and are normally protected under the business
2 of 49 Exams judgment rule. Only the Board of Directors have the power
to issue dividends (an Officer cannot). Once a distribution
is declared, the shareholder affected has a legal right to that
distribution.
• Generally, a shareholder DOES NOT have the right to
compel a corporation to issue a distribution (whether in the
form of a dividend or otherwise), UNLESS such right is
expressly granted in the Articles of Incorporation. However,
a court will interfere with the Board’s discretion and order a
dividend/distribution upon a showing: (1) of bad faith or
dishonest purpose; AND (2) that funds were available for
the dividend/distribution.
o Examples of bad faith include: intense hostility to
minority shareholders; exclusion of the minority
from employment by the corporation; high salaries,
bonuses, or corporate loans made to the officers in
control; that the majority group may be subject to
high personal income taxes if substantial dividends
are paid; and a desire by the controlling directors
to acquire the minority stock interests as cheaply as
possible.
F. Shareholders
■■ Shareholder Meetings: Right to Vote & Record Date

• Only shareholders that are registered shareholders on record July 2010, Essay 9
MED date are entitled to vote at a shareholders meeting. Thus, the Feb 2001, Essay 7
owner of shares on the record date is entitled to vote those
2 of 49 Exams shares at the upcoming shareholders meeting even if he sells
the shares before the meeting occurs (the transferee is not
entitled to vote). However, if the shareholder executed an
irrevocable proxy in favor of the buyer of the shares, then the
buyer (not the record date shareholder) will be able to vote the
shares at the meeting.
• Under the RMBCA, the Bylaws may fix or provide the
method of fixing the record date, BUT the record date cannot
be more than 70 days prior to the shareholder meeting. If
not otherwise fixed, the record date is the day before the first
notice is delivered to shareholders.

■■ Shareholder Meetings: Proxy Voting & Revocation of a Proxy

• Under the RMBCA, a shareholder may vote her shares at July 2010, Essay 9
HIGH a shareholders meeting without physically attending the Feb 2006, Essay 5
meeting through the use of a proxy. A valid proxy must be July 2004, Essay 2
4 of 49 Exams
signed on: (a) an appointment form; OR (b) an electronic Feb 2001, Essay 7
transmission. An oral proxy appointment is invalid. A proxy
MUST be accepted if on its face there are no reasonable
grounds to deny its genuineness and authenticity.
• An individual who is granted the power to vote another’s
shares by a proxy MUST act in accordance with any
agreement between the parties (if the shareholder directs
the proxy holder to vote a certain way, then the proxy
holder must do so). A shareholder may also grant a proxy
holder the ability to vote shares as the proxy holder deems
appropriate. A proxy is only valid for 11 months, unless the
proxy provides otherwise.
• Proxy agreements are freely revocable by the shareholder,
even if the proxy states that it is irrevocable (any
action inconsistent with the grant of the proxy acts as a
revocation). One exception to this rule is a proxy coupled
with an interest or legal right, which is irrevocable if the
proxy expressly states as such.
• Under the RMBCA, proxy appointments coupled with an
interest include: (1) a pledgee (a person who lends money
and accepts a pledge for the loan); (2) a person who
purchased or agreed to purchase the shares; (3) a creditor
of the corporation who extended it credit; (4) an employee
of the corporation whose employment contract requires the
appointment; or (5) a party to a voting agreement.
■■Shareholder Meetings: Annual Meetings, Special
Meetings, & Notice
• Annual Meetings: A corporation shall hold an annual Feb 2006, Essay 5
LOW meeting of the shareholders at a date/time stated in the

bylaws. Generally, the directors are elected at the annual
1 of 49 Exams
meeting.
• Special Meetings: A special meeting is one held separate
from the annual meeting, and may be called by: (a) the Board
of Directors; (b) persons authorized under the Articles of
Incorporation or Bylaws; OR (c) by the holders of at least
10% of all votes entitled to be cast at the meeting.

o A special meeting requires proper notice to the

shareholders who are entitled to vote. Notice
MUST: (1) be given at least 10 days in advance of
the meeting (but not more than 60 days); (2) include a
full description of the purpose of the meeting; AND
(3) include the date, time, and place. If the meeting
concerns a fundamental change in the corporation
(i.e. dissolution), ALL shareholders (whether or not
entitled to vote) are entitled to notice of the meeting.
• A shareholder may waive notice by: (a) delivering a signed
writing to the corporation; OR (b) attending the meeting
and not objecting at the beginning of the meeting (or by not
objecting to a particular matter that is not within the purpose
described in the meeting notice).
■■ Shareholder Meetings: Quorum & Voting

• A quorum MUST be present in order for the shareholders to Feb 2006, Essay 5
MED take action at a meeting. Unless the Articles of Incorporation Feb 2001, Essay 7
provide a greater number, a quorum exists when a majority
2 of 49 Exams of the shares entitled to vote are present.
• If a quorum exists, action on a matter (other than the election
of directors) is approved if a majority of votes are cast in
favor of the action UNLESS the articles of incorporation
require a greater number of votes. Each outstanding share is
entitled to one vote on every matter voted on at a shareholders
meeting (unless the Articles of Incorporation provide
otherwise).
■■ Shareholder Meetings: Election of Directors

• Under the RMBCA (and most states), the candidates who Feb 2001, Essay 7
LOW receive the most votes (a plurality vote) will be elected
as Directors at a shareholders meeting where a quorum is
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present, even if the Director(s) do not receive a majority of the
votes. In some states, a majority of the vote is necessary.
• If the Articles of Incorporation provide for cumulative
voting, each shareholder has a number of votes that is equal
to the shares owned, multiplied by the number of director
spots open for election (i.e. 100 shares owned x 3 nominees
= 300 votes). A shareholder may cast all his votes for one
director nominee rather than being limited to a maximum
number of votes for each nominee.

■■ Shareholder’s Right to Inspect Books and Records

• Under the RMBCA, a shareholder has the right to inspect and Feb 2017, Essay 4
MED copy the corporation’s accounting records, excerpts the board Feb 2010, Essay 5
of directors’ meeting minutes, and the record of shareholders
2 of 49 Exams if: (1) the inspection is made during regular business hours
at the corporation’s principal office; (2) he provides 5-days
written notice; (3) the demand is made in good faith and
for a proper purpose; (4) he describes the purpose with
particularity; AND (5) the records are directly connected
with the purpose. The determination of the value of shares
or whether the corporation has engaged in illegal conduct has
been deemed to be a proper purpose.
• A shareholder may inspect the following records without
providing a proper purpose: (i) Articles of Incorporation;
(ii) Bylaws; (iii) resolutions by the Board of Directors; (iv)
minutes of shareholder meetings for the past 3 years; (v)
written communications sent to the shareholders within the
last 3 years; (vi) names and business addresses of the current
Directors and Officers; and (vi) its most recent annual report.
• The right of inspection CANNOT be abolished or limited by a
corporation’s Articles of Incorporation or Bylaws.
■■ Shareholder Voting Agreements

• Under the RMBCA, shareholders may sign an agreement July 1997, Essay 6
LOW providing how they will vote their shares. A voting
agreement is specifically enforceable, and a claim for breach
1 of 49 Exams
of contract may be brought to enforce this right.
G. Directors
■■ Board of Directors Meeting: Quorum

• Under the RMBCA, the Board of Directors can only act if a Feb 2012, Essay 9
LOW quorum is present. A majority of the Board of Directors is
necessary to make a quorum, UNLESS there are provisions
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in the Articles of Incorporation stating that a higher or lower
number is required. However, the Articles of Incorporation
MUST require that at least one-third of the directors be
present to make a quorum.
• A quorum must be present at the time when a vote is taken. If
a quorum is present at the beginning of a meeting, but
directors subsequently leave breaking the quorum before a
vote, then the Board of Directors CANNOT vote or act.

• The Board of Directors may permit any or all Directors to

participate in regular or special meetings by any means of
communication, BUT all directors participating must be able
to simultaneously hear each other during the meeting.
■■ Board of Directors Meeting: Voting & Objection to Actions

• If a quorum of the Board of Directors is present when a vote 0 exams
LOW is taken at a meeting, an act is approved by the affirmative
vote of a majority of directors present UNLESS the Articles
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of Incorporation or bylaws require a greater number.
• A director who is present at a meeting of the Board of
Directors when corporate action is taken is deemed to have
assented to the action taken UNLESS: (a) the director
objects at the beginning of the meeting (or promptly
upon arrival) to holding it or transacting business at the
meeting; (b) the dissent or abstention from the action taken
is entered into the meeting minutes; OR (c) the director
delivers written notice of the director’s dissent or abstention
to the presiding officer of the meeting before its adjournment
or to the corporation immediately after adjournment of
the meeting. The right of dissent or abstention is NOT
available to a director who votes in favor of the action
taken.
■■ Board of Directors Meeting: Notice & Waiver

• Under the RMBCA, the Board of Directors may hold regular Feb 2012, Essay 9
LOW or special meetings. Unless the Articles of Incorporation
provide otherwise, regular meetings may be held without
1 of 49 Exams
notice, whereas special meetings require at least two days’
notice. The notice must provide the date, time, and place
of the special meeting (the purpose of the meeting is not
required).
• A Director may waive notice in a signed writing. Waiver
also occurs if the Director attends the meeting, UNLESS
the Director: (1) objects at the beginning of the meeting
(or promptly upon arrival); AND (2) does not vote at the
meeting.
■■ Board Action by Written Consent

• Generally, the Board of Directors can only take action at a Feb 1997, Essay 4
LOW meeting. However (unless the Articles of Incorporation or
bylaws provide otherwise), action may be taken without a
1 of 49 Exams
meeting by the Board of Directors if: (1) each director signs

a consent describing the action to be taken; AND (2) delivers

it to the corporation. A director may withdraw his consent by
a signed revocation delivered to the corporation prior to the
corporation receiving the written consents signed by the other
directors.
■■ Removal of Directors
• Under the RMBCA (and most states), shareholders may July 2004, Essay 2
LOW remove Directors with or without cause UNLESS the
Articles of Incorporation only allow removal for cause. At
1 of 49 Exams
common law, Directors could only be removed for
cause. Cause to remove a director exists when that director
violates a fiduciary duty, including engaging in self-dealing,
usurping a corporate opportunity, or committing waste.
o A director may be removed by the shareholders only
at (1) a meeting called for the purpose of removing
the director, and (2) the meeting notice must state that
the purpose (or one of the purposes) of the meeting is
removal of the director.
• If the corporation uses straight voting, then a director may be
removed only if the number of votes cast to remove exceeds
the number of votes cast not to remove the director. If
cumulative voting is authorized, a director may be removed
only if the number of votes for removal are greater than
those needed to elect him.
H. Officers
■■ Authority of Officers
• The Board of Directors may elect individuals as Officers Feb 2005, Essay 1
MED (i.e. President, Vice-President, Secretary) to manage the day- Feb 1999, Essay 6
to-day business of the corporation. Feb 1997, Essay 4
3 of 49 Exams • An officer has actual authority to act consistently with their
duties: (a) as outlined in the Bylaws; OR (b) as provided by
the Board of Directors. An officer has apparent authority
to bind the corporation when: (1) a third-party reasonably
believes the person/entity has authority to act on behalf of
the corporation; AND (2) that belief is traceable to the
corporation’s manifestations (the corp. holds the officer out
as having authority).
• The President of a corporation generally has implied
authority to bind the corporation for matters within its
ordinary course of business, BUT DOES NOT have authority
to bind the corporation for extraordinary acts.

An act or transaction is within the ordinary course of

o
business if it’s normal and necessary for managing
the business – a person would reasonably conclude
the act is directly and necessarily embraced within
the corporation’s business. Prosecuting a lawsuit in
the name of the corporation is normally within the
ordinary course of business.
• The Secretary of the corporation normally has the authority to
maintain and authenticate the records of the corporation.
■■ Removal of Officers
• An Officer may be removed at any time with or without July 1997, Essay 6
LOW cause by: (a) the Board of Directors; (b) the Officer who
appointed such Officer, unless the Bylaws or the Board of
1 of 49 Exams
Directors provide otherwise; OR (c) any other Officer, if
authorized by the Bylaws or the Board of Directors. An
officer’s removal DOES NOT affect the officer’s contract
rights (if any) with the corporation.
I. Members & Managers
■■ Management of an LLC
• Under RULLCA, an LLC is presumed to be member- July 2016, Essay 1
LOW managed UNLESS the Operating Agreement provides
otherwise.
1 of 49 Exams
• A manager-managed LLC is run by an elected group of
managers, who manage the business similarly to a board
of directors. To constitute a manager-managed LLC, the
Operating Agreement must state that the LLC will be
manager-managed (i.e. that the LLC is “manager-managed”,
“managed by managers”, or management is “vested in
managers”).
■■ Authority of Members and Managers of an LLC

• Under RULLCA and general agency principles, each July 2016, Essay 1
LOW member or manager of an LLC generally has authority
to bind the LLC for the purpose of its business (including
1 of 49 Exams
entering into contracts).
• A member/manager has express actual authority to bind
the LLC upon receiving said authority from the Operating
Agreement or from the managing members/managers. The
Operating Agreement may restrict certain activities without
unanimous or majority consent (i.e. non-ordinary business
transactions).

o Acts within the ordinary course of the LLC business

need only be approved by a majority of the members.
o While extraordinary acts (acts outside the ordinary
course of business) may be undertaken only with the
consent of ALL members.
• A member/manager has implied actual authority (also
known as incidental authority) to take actions that are
reasonably incidental or necessary to achieve the member/
manager’s authorized duties.
• A member/manager has apparent authority to bind the
LLC for all acts apparently conducted within the ordinary
course of the LLC’s business. A member/manager’s act
will NOT bind the LLC if: (1) the member/manager lacked
authority; AND (2) the third-party knew (actual knowledge)
or had notice that the member/manager lacked authority.
• An act or transaction is within the ordinary course of business
if it is normal and necessary for managing the business –
a person would reasonably conclude the act is directly and
necessarily embraced within the company’s business.
J. Close Corporations & Control Devices
■■ Preemptive Rights
• A preemptive right is the right of an existing shareholder Feb 2000, Essay 7
LOW to maintain her percentage of ownership in the corporation
by being offered the opportunity to purchase shares of the
1 of 49 Exams
corporation issued for cash before outsiders are permitted to
purchase them.
• Under the RMBCA, shareholders DO NOT enjoy preemptive
rights unless such rights are explicitly granted in the
corporation’s Articles of Incorporation. Additionally,
preemptive rights DO NOT apply to: (1) shares issued as
compensation; (2) shares issued to satisfy conversion or
option rights created to provide compensation; (3) shares
authorized in the Articles of Incorporation that are issued
within 6 months of incorporation; (4) shares issued for
consideration other than money; OR (5) shares issued
without general voting rights but with preferential rights to
distributions.
• Shareholders of common stock DO NOT have preemptive
rights with respect to preferred shares unless the preferred
shares are convertible into common shares.

■■ Restrictions on Share Transfers

• Under the RMBCA, the Articles of Incorporation, bylaws, July 2000, Essay 4
LOW and shareholder agreements may impose restrictions on
the transfer of shares of the corporation for: (a) any
1 of 49 Exams
reasonable purpose; (b) to preserve exemptions under
federal or state securities law; OR (c) to maintain the
corporation’s status when it is dependent on the number or
identity of its shareholders. An absolute restraint on the
transfer of shares is invalid. A restriction DOES NOT affect
shares issued before the restriction was adopted UNLESS the
holders of the shares are parties to the restriction agreement or
voted in favor of it.
• Reasonable restrictions on the transfer of shares may be
enforced against the transferor shareholder. However, a valid
share transfer restriction CANNOT be enforced against the
transferee UNLESS: (a) the restriction was conspicuously
noted on the stock certificate; OR (b) the transferee had
actual knowledge of the restriction.
• Under the RMBCA, the following restrictions are expressly
allowed: (1) a right of first refusal (the shareholder must
first offer the corporation or other shareholders an opportunity
to buy the shares); (2) the obligation of the corporation
or other persons to acquire the shares; (3) to require the
corporation or certain shareholders/persons to approve the
transfer of shares, if not manifestly unreasonable; and (4)
to prohibit the transfer to designated persons or classes of
persons, if not manifestly unreasonable.
K. Fiduciary Duties
■■ Fiduciary Duties of Directors: Duty of Care

• Directors are fiduciaries of a corporation, and as such owe a Feb 2017, Essay 4
HIGH duty of care to the corporation. This means that they must July 2015, Essay 4
discharge their duties: (1) in good faith; (2) in a manner the Feb 2009, Essay 9
8 of 49 Exams
Director reasonably believes to be in the best interests of Feb 2008, Essay 5
the corporation; AND (3) with the care that a person in a July 2006, Essay 5
like position would reasonably believe appropriate under Feb 2001, Essay 7
similar circumstances. If this three-part test is satisfied, then July 1997, Essay 6
a Director will NOT be liable for corporate decisions that July 1995, Essay 4
resulted in adverse consequences to the corporation. Under
the common law, the above test was known as the Business
Judgment Rule.

• The duty of care requires that Directors be reasonably

informed on the decisions they make. A Director may rely
on the reasonable advice of advisors, such as attorneys,
accountants, officers, or Committees of the Board when: (1)
such reliance was reasonable; AND (2) the advisor or
Committee was qualified to provide such advice.
• A party attacking a board decision must normally rebut the
presumption that its business judgment was an informed
one. However, the Business Judgment Rule DOES NOT
apply or protect Directors: (i) financially interested in a
transaction (a conflict of interest); (ii) not acting in good
faith; OR (iii) who engaged in fraud or illegality.
• If a Director breaches the duty of care, he may be held
personally liable to the corporation for any losses suffered as
a result.
■■ Fiduciary Duties of Directors: Duty of Loyalty

• A Director owes the corporation a fiduciary duty of loyalty, July 2015, Essay 4
HIGH which means that the Director, in his dealings with the Feb 2009, Essay 9
corporation, must act in the best interests of the corporation Feb 2008, Essay 5
5 of 49 Exams
and without personal conflict. Feb 2002, Essay 7
• The duty of loyalty forbids Directors from: (a) entering July 1995, Essay 4
into conflicting interest transactions; (b) usurping
a corporate opportunity; (c) competing with the
corporation; OR (d) trading on inside information.
• A conflicting interest transaction with the corporation is
a breach of the duty of loyalty UNLESS the Director shows
that: (a) it was approved by a majority of disinterested
Directors after full disclosure of all relevant material
facts; (b) it was approved by a majority of disinterested
Shareholders after full disclosure of all relevant material
facts; OR (c) the transaction as a whole was fair to the
corporation at the time it was entered into (the price must be
comparable to what the corporation would receive in an arm’s
length transaction and the process followed by the Board
was appropriate). The Business Judgment Rule DOES
NOT apply or protect Directors financially interested in a
transaction or who engaged in fraud or illegality.
o Full disclosure occurs when the director discloses
all known facts concerning the transaction that a
reasonable person would believe necessary to make a
decision.
o A quorum must be present to vote on a conflicting
interest transaction. This exists when a majority of
disinterested directors is present (but there must be at
least two disinterested directors to vote).

• A conflict of interest occurs when the director/officer or a

family member either: (a) is a party to the transaction; (b)
has a beneficial interest in the transaction or is so closely
linked to it that the director’s judgment may reasonably be
affected; OR (c) is involved with another entity (director,
employee, owner, etc.) that is conducting business with the
corporation and that transaction would normally be brought
before the Board of Directors because of its importance to the
corporation.
■■ Fiduciary Duties of Shareholders

• Generally, shareholders DO NOT owe fiduciary duties to July 2006, Essay 5
LOW fellow shareholders, and they can act in their own self-
interest. However, courts have found that controlling
1 of 49 Exams
shareholders in close-corporations owe a fiduciary duty
of loyalty and good faith and fair dealing to minority
shareholders (which includes an obligation to disclose all
material information). If any of these duties are breached,
the controlling shareholder may be held liable to the minority
shareholders for any losses caused by the breach. A close-
corporation is one whose shares are not publicly traded and
has only a small number of shareholders.
■■ Restricting/Eliminating Fiduciary Duties in a Corporation

• Under the RMBCA, the Articles of Incorporation may Feb 2009, Essay 9
LOW eliminate or limit the personal liability of a director for any
action taken or not taken EXCEPT for: (a) financial benefits
1 of 49 Exams
improperly received; (b) intentional infliction of harm on
the corporation or its shareholders; (c) unlawful corporate
distributions; or (d) an intentional violation of criminal law.
• Additionally, the Articles of Incorporation may provide for
indemnification of a director for personal liability, except for
the four instances noted above.
■■ Fiduciary Duties Owed by Members/Managers of an LLC

• Under RULLCA, a member of a Member-Managed LLC July 2013, Essay 6
MED owes the fiduciary duties of care and loyalty to the company July 2012, Essay 8
and its members. July 2007, Essay 9
3 of 49 Exams o Duty of Care: A member owes the duty of care
to act: (1) with the care that a person in a like
position would reasonably exercise under similar
circumstances; AND (2) in a manner the member
reasonably believes to be in the best interests of the
company. If a member meets the requirements above,
they CANNOT be held personally liable under the
Business Judgment Rule.

 The duty of care requires that members

be reasonably informed on the decisions
they make. A member may rely in good
faith upon opinions, reports, statements,
or other information provided by another
person that the member reasonably believes
is a competent and reliable source for the
information.
o Duty of Loyalty: The duty of loyalty of a member
includes the duties: (1) to account for any property,
profit, or benefit the member derived from the LLC’s
activities or property, or from appropriation of an LLC
opportunity; (2) to refrain from dealing with the LLC
when an adverse interest to the LLC exists (unless the
transaction was fair to the LLC); AND (3) to refrain
from competing with the LLC before its dissolution.
 HOWEVER, after full disclosure of
all material facts, ALL members may
authorize an act or transaction that
otherwise would violate the duty of
loyalty.
• In a Manager-Managed LLC, the fiduciary duties of care
and loyalty (as stated above) only apply to the managers, and
NOT the members. The are two notable points concerning the
duty of loyalty in Manager-Managed LLC:
o First, only the members (not the managers) may
authorize an act or transaction that otherwise would
violate the duty of loyalty.
o Second, a manager must refrain from competing with
the LLC until winding up is completed (the duty does
not end upon dissolution).
• Both members and managers MUST discharge their duties
and exercise any rights consistently with the contractual
obligation of good faith and fair dealing.
■■ Restricting/Eliminating Fiduciary Duties in an LLC

• Under RULLCA, if not manifestly unreasonable, the July 2013, Essay 6
LOW Operating Agreement may: (1) restrict or eliminate the
duty of loyalty; (2) identify activities that do not violate
1 of 49 Exams
the duty of loyalty; (3) alter the duty of care (except to
authorize intentional misconduct or a knowing violation of
law); (4) alter or eliminate any other fiduciary duty (including
eliminating particular aspects of that duty); and (5) prescribe
the standards by which to measure the performance of the
contractual obligation of good faith and fair dealing.

L. Shareholder & Member Litigation
■■ Direct & Derivative Actions

• A direct action involves an injury or breach of a duty July 2014, Essay 6
HIGH owed to a shareholder of a corporation. A shareholder may July 2012, Essay 8
bring a direct action against a director or officer, but MUST Feb 2010, Essay 5
6 of 49 Exams
prove an actual injury that is NOT solely the result of an July 2007, Essay 9
injury suffered by the corporation (i.e. an action to compel July 1998, Essay 6
divided). Similarly, a member of an LLC may bring a July 1997, Essay 6
direct action against another member, a manager, or the
LLC, and MUST prove an actual/threatened injury that is
not solely the result of an injury suffered by the LLC. The
damages awarded in a direct action will be paid directly to the
shareholder or member.
• In a derivative action, a shareholder is suing to enforce the
corporation’s claim, not his own personal claim. The suit
must be one in which the corporation could have brought
itself, and has harmed the corporation in some way (i.e. loss
suffered to corp.’s share value due to misleading statements
by directors/officers).
• To commence or maintain a derivative suit under the
RMBCA, the plaintiff-shareholder must meet the
following requirements: (1) be a shareholder at the time of
the act or omission or became a shareholder by operation of
law from such a shareholder; (2) be a shareholder through
entry of judgment; (3) he must fairly and adequately
represent the interests of the corporation; AND (4) he must
make a written demand upon the corporation to take suitable
action.
o A derivative suit CANNOT be commenced until
90 days after a written demand UNLESS: (a)
the corporation rejects the demand; OR (b) the
corporation will suffer irreparable harm if forced to
wait. Under the RMBCA, there is NO exception to
the demand requirement for futility.
• The damages awarded in a derivative action will be paid to
the corporation (not the shareholder), but the shareholder may
recover the reasonable cost of the litigation.
• To bring a derivative action on behalf of an LLC, the
elements are the same (as those above) for a corporation
EXCEPT: (1) the action may be brought within a
reasonable time after the demand; and (2) the demand
requirement may be waived if the demand is deemed
futile. In a member-managed LLC, the demand must be made
on the other members. In a manager-managed LLC, the
demand must be made upon the managers.

■■ Derivative Actions: Dismissal by the Board of Directors

• Under the RMBCA, a derivative proceeding MUST be Feb 2017, Essay 4
LOW dismissed by the court on motion by the corporation if (1) a
majority of the board’s qualified directors (directors who do
1 of 49 Exams
not have a material interest in the derivative action), (2) have
determined in good faith, (3) after conducting a reasonable
inquiry, (4) that the derivative proceeding is not in the best
interests of the corporation. Some investigation is required
by the Board of Directors to support their determination
that the derivative action is not in the best interests of the
corporation.
■■ Federal Securities Law – Rule 10b-5

• Rule 10b-5 prohibits the use of any means or July 1998, Essay 6
LOW instrumentality of interstate commerce in any scheme to
defraud, make material misrepresentations or omissions,
1 of 49 Exams
or in any other way to use fraud in the purchase or sale of
securities.
• In order for a plaintiff to prevail under a Rule 10b-5 claim, he
must show that: (1) the defendant engaged in a fraudulent
scheme or device; (2) which was relied upon; (3) in
connection with the purchase or sale of a security; (4)
acted with scienter (actual knowledge or recklessness); (5)
used some means of interstate commerce; AND (6) caused
damages. Non-trading defendants may also be held liable if
fraud (based on misleading information) can be proven.
o A fraudulent scheme or device includes: (a)
misrepresentations of material facts; (b) insider
trading (trading securities on the basis of inside
information); OR (c) tipping (trading on material
information received from an insider).
 An insider is a person that discloses non-
public information that a reasonable trader
would want to know before buying/selling
stock or abstaining from trading. One who
receives insider information is only liable
if he knows that an insider is giving him
non-public information for an improper
purpose. Reliance is presumed if a material
omission is made. Material is defined
as a statement or omission that creates a
substantial likelihood that a reasonable
investor would consider it important.

• In a Rule 10b-5 action, the plaintiff MUST either be: (a)

the Securities and Exchange Commission (SEC); OR (b)
connected to the purchase or sale of the securities at issue.
M. Fundamental Corporate Changes
■■ Amending the Articles of Incorporation

• Under the RMBCA, the Articles of Incorporation may Feb 2000, Essay 7
MED be amended at any time, BUT ONLY IF the following July 1996, Essay 7
procedures are followed: (1) adoption by the Board of
2 of 49 Exams Directors; (2) notice to each shareholder (whether or not
entitled to vote) of a meeting to vote on the amendment –
the notice must (a) state that a purpose of the meeting is
to consider the amendment, and (b) provide a copy of the
proposed amendment; (3) adoption by the shareholders by
a majority vote (unless a greater number is required in the
Articles of Incorporation or state law).
• However, there are two exceptions to the above rule:
o First, the Board of Directors have the authority to
make general minor amendments to the Articles
without shareholder approval.
o Second, the Board of Directors (or its incorporators
if it has no board of directors) may adopt any
amendment to the Articles of Incorporation without
shareholder approval if a corporation has not yet
issued shares.
• Class voting is required if the amendment would affect shares
of the class, including a change of all or part of the class into
a different number of shares of the same class.
■■ Mergers and Share Exchanges

• Under the RMBCA, the approval of a merger requires: July 2003, Essay 1
LOW (1) approval by the Board of Directors of both
corporations; AND (2) shareholder approval of both
1 of 49 Exams
corporations by a majority vote (unless a greater number is
required by state law or the Articles of Incorporation).
• Shareholder approval by the surviving corporation is
NOT required for a merger if: (1) the corporation’s Articles
of Incorporation will not be changed; (2) the shareholders’
number of outstanding shares will not change; AND (3) the
voting power of any shares issued as a result of the merger is
20% or less of the voting power of the surviving corporation.

• A short form merger occurs when a parent corporation

merges with its own subsidiary corporation. If the parent
corporation owns at least 90 percent of a subsidiary’s
outstanding (voting) shares, then only the Board of
Directors of the parent corporation has to approve the
merger. Approval is NOT REQUIRED from the: (a)
shareholders of the parent corporation; (b) the Board of
Directors of the subsidiary; or (c) the shareholders of the
subsidiary.
• The approval of a share exchange requires: (1) approval
by the Board of Directors of both corporations; AND (2)
shareholder approval of the acquired corporation by a
majority vote (unless a greater number is required by state law
or the Articles of Incorporation). Shareholder approval is
NOT required for the acquiring corporation.
■■ Sale of All or Substantially All of Corporate Assets

• A sale of all or substantially all of the corporation’s assets is Feb 1999, Essay 6
MED deemed a fundamental change if the sale is NOT in the usual July 1996, Essay 7
and regular course of business. July 1995, Essay 4
3 of 49 Exams • Under the RMBCA, the following procedure MUST be
followed by the corporation for a fundamental change: (1)
adoption by the Board of Directors; (2) notice to each
shareholder (whether or not entitled to vote) of a meeting to
vote on the proposal – the notice must state the purpose of
the meeting; (3) adoption by the shareholders by a majority
vote (unless a greater number is required in the Articles of
Incorporation or state law).
■■ Dissenter’s Appraisal Rights for Fundamental Changes

• A dissenting shareholder is entitled to appraisal rights, and to July 2003, Essay 1
MED obtain payment of the fair market value of his shares, for the Feb 1999, Essay 6
following fundamental changes: (1) when the shareholder July 1996, Essay 7
3 of 49 Exams has the right to vote on the merger plan; (2) when he is a
shareholder of the subsidiary in a short form merger; (3)
when he is a shareholder of a corporation whose shares
are being acquired in a share exchange; (4) when the
shareholder has the right to vote on the distribution of all or
substantially all of the corporate assets; and (5) when an
amendment to the Articles of Incorporation materially and
adversely affects the shareholder’s rights.
o Appraisal rights are NOT available to shareholders
of publicly traded companies.

• Shareholders who DO NOT consent to a fundamental

corporate change may force the corporation to purchase their
shares if: (1) the shareholder gave notice to the corporation
of his intent to demand payment if the change was
approved; (2) the notice was given before the vote was taken
on the fundamental change; (3) the fundamental change is
effectuated; AND (4) the shareholder did not vote in favor of
the change. If the corporation and the dissenter cannot agree
on a fair price, the court will resolve the issue.
N. Dissolution & Dissociation
■■ Judicial Dissolution of a Corporation

• Under the RMBCA, a shareholder may petition the court July 2000, Essay 4
LOW to dissolve the corporation if he can show: (a) a deadlock
of the Directors in the management of corporate affairs and
1 of 49 Exams
irreparable injury to the corporation; (b) the Directors
have acted in a manner that is illegal, oppressive, or
fraudulent; (c) the shareholders are deadlocked in voting
power and have failed to elect Directors for at least two
consecutive annual meetings; OR (d) the corporate assets
have been wasted or misapplied.
o Oppressive conduct includes violating a shareholder’s
reasonable expectations or preventing minority
shareholders from having equal rights and
opportunities in the corporation.
• In a judicial dissolution proceeding, the corporation or
shareholders may elect to purchase all shares owned by
the petitioning shareholder at fair value. This election is
generally irrevocable.
■■ Voluntary Dissolution of a Corporation

• Under the RMBCA, a corporation’s Board of Directors Feb 2006, Essay 5
MED may propose dissolution to the shareholders. The following July 1996, Essay 7
procedure MUST be followed by the corporation for the
2 of 49 Exams proposal to be adopted: (1) adoption by the Board of
Directors; (2) notice to each shareholder (whether or not
entitled to vote) of a meeting to vote on the proposal – the
notice must state the purpose of the meeting; AND (3)
adoption by the shareholders by a majority vote (unless a
greater amount is required in the Articles of Incorporation or
state law).

• A corporation may be dissolved by a majority of the

incorporators or initial directors if: (1) the corporation has
NOT issued shares or commenced business; AND (2)
Articles of Dissolution are filed with the Secretary of State.
■■ Dissociation of a Member from an LLC

• Under RULLCA, a person has the power to dissociate as a July 2016, Essay 1
LOW member of the LLC at any time (rightfully or wrongfully).
• A member becomes dissociated from the LLC upon: (1)
1 of 49 Exams
notice of the member’s express will to withdraw; (2)
occurrence of an agreed upon event in the Operating
Agreement; (3) expulsion pursuant to the Operating
Agreement; (4) expulsion by the unanimous vote of the
other members if it’s (a) unlawful to carry on the LLC
business with that member, or (b) there has been a transfer of
all or substantially all of that member’s transferable interest
in the LLC (other than a transfer for security purposes); (5)
by judicial order for misconduct; (6) bankruptcy; (7)
incapacity or death; (8) appointment of a personal
representative or receiver; OR (9) termination of the
entity member (who is not an individual, partnership, LLC,
corporation, trust, or estate).
• Upon dissociation, the member loses his right to participate
in management of the LLC. However, the dissociated
member will have a right to receive distributions from the
LLC if issued. The dissociated member has no right to
payment for his LLC interest, unless the Operating Agreement
provides otherwise.
• A person’s dissociation is deemed wrongful when it is: (a)
in breach of the Operating Agreement; OR (b) occurs before
the termination of the LLC and (i) the person withdraws as
a member by express will; (ii) the person is expelled as a
member by judicial order; (iii) the person becomes a debtor
in bankruptcy; (iv) the person is expelled; or (v) the member
entity is willfully dissolved or terminated. A person that
wrongfully dissociates as a member is liable to the LLC and
other members for damages caused by the dissociation.
• Under RULLCA, dissociation of a member DOES NOT
result in dissolution of the LLC.

■■ Dissolution & Winding Up of an LLC

• Under RULLCA, an LLC is dissolved upon: (a) the July 2013, Essay 6
MED occurrence of an event in the Operating Agreement causing July 2012, Essay 8
dissolution; (b) the consent of all members; (c) the passage
2 of 49 Exams of 90 consecutive days during which the LLC has no
members; or (d) judicial dissolution of the LLC.
• A court may grant judicial dissolution of an LLC upon an
application by a member on any of the following grounds: (a)
that the managers or controlling members have/will/are
acting in a manner that is illegal or fraudulent; (b) that the
managers or controlling members have/are acting in a manner
that is oppressive and directly harmful to the member; (c)
the conduct of all or substantially all of the LLC’s activities
is unlawful; OR (d) it is not reasonably practicable to carry
on the LLC’s activities in conformity with the Certificate of
Organization and the Operating Agreement.
• Upon dissolution, the LLC’s activities must be wound up. As
part of the winding up process, the LLC must provide notice
of the dissolution to creditors. Under RULLCA, the notice
sent to creditors must set forth the steps that are necessary for
enforcing their claims against the dissolving LLC. If proper
dissolution and winding up procedures are NOT followed,
then a creditor’s claim may be enforced against: (1) the
dissolved LLC; and (2) the members personally if the assets
of the company have been distributed after dissolution
(but such liability cannot exceed the total value of assets
distributed to said member post-dissolution).

04 CIVIL PROCEDURE
A. Federal Subject Matter Jurisdiction MEE TIP

■■ Subject Matter Jurisdiction: Federal Question On the exam, assume the
application of: (1) the Federal
• A federal court can only hear cases where it has subject Rules of Civil Procedure; AND (2)
HIGH matter jurisdiction, because it is a court of limited federal statues pertaining to trial
jurisdiction, appellate jurisdiction,
jurisdiction. A federal court has subject matter jurisdiction venue, and transfer.
10 of 49 Exams
if: (a) there is a federal question; (b) there is diversity
of citizenship among the parties; OR (c) supplemental July 2016, Essay 6
jurisdiction is present. Subject matter jurisdiction is not July 2015, Essay 2
waived if a party fails to raise it at trial. It may be raised at Feb 2015, Essay 5
any time, even on appeal. Feb 2011, Essay 8
• Federal Question Jurisdiction exists if a well-pleaded July 2010, Essay 7
Complaint alleges a claim that arises under: (a) federal Feb 2010, Essay 6
law; (b) the U.S. Constitution; OR (c) United States Feb 2006, Essay 3
treaties. The plaintiff MUST be enforcing a federal right, Feb 2004, Essay 4
and the federal question of law must be present on the face of Feb 2002, Essay 1
the Complaint. Raising a defense under a federal law is NOT July 1997, Essay 5
sufficient to trigger federal question jurisdiction.
■■ Subject Matter Jurisdiction: Diversity of Citizenship

MEE TIP
• A federal court can only hear cases where it has subject
HIGH matter jurisdiction, because it is a court of limited In the past, most MEE questions
jurisdiction. A federal court has subject matter jurisdiction have generally asked: “Does
the court have subject matter
19 of 49 Exams
to hear a claim if: (a) there is a federal question; (b) jurisdiction?” In such a situation,
there is diversity of citizenship among the parties; OR you will need to analyze Federal
(c) supplemental jurisdiction is present. Subject matter Question Jurisdiction, Diversity
of Citizenship Jurisdiction, and
jurisdiction is not waived if a party fails to raise it at trial. It
Supplemental Jurisdiction.
may be raised at any time, even on appeal.
• Diversity of Citizenship Jurisdiction exists when: (1) there
is complete diversity of citizenship between all plaintiffs
and defendants (no plaintiff can be from the same state
as any defendant); AND (2) the amount in controversy
exceeds $75,000. However, jurisdiction DOES NOT exist
for cases among aliens (both the plaintiff and defendant are
aliens), unless U.S. citizens are present on both sides of the
action. Diversity jurisdiction is determined at the time the
action is commenced; a post-filing change of citizenship is
irrelevant absent bad faith.
o Citizenship: A party’s citizenship is determined by MEE TIP
their domicile.
 For a natural person, domicile is determined On the exam, apply the
appropriate domicile test based
by the party’s: (1) residence (physical on the person/entity described in
presence in the state); AND (2) subjective the essay question.
intent to make the state their permanent

04 CIVIL PROCEDURE
home. The above test also applies to

permanent resident aliens. If a person resides Feb 2019, Essay 4
in more than one state for an extended July 2016, Essay 6
period of time, then the court will review July 2015, Essay 2
factors, such as the person’s residence, voter Feb 2015, Essay 5
registration/records, vehicle registration, July 2013, Essay 1
location of bank accounts, and place of Feb 2012, Essay 7
employment. Domicile continues until Feb 2011, Essay 8
changed. Both residence and intent must July 2010, Essay 7
be established concurrently for a change in Feb 2010, Essay 6
domicile; the mere change of one without the July 2009, Essay 6
other is not sufficient. July 2008, Essay 5
 A corporation has dual citizenship, and July 2007, Essay 2
is deemed to be a domiciliary of: (1) the Feb 2006, Essay 3
state of its principal place of business Feb 2005, Essay 3
(the corporation’s “nerve center” – where July 2004, Essay 6
officers direct, control, and coordinate the Feb 2004, Essay 4
corporation’s activities); AND (2) any Feb 2002, Essay 1
state where it is incorporated. Usually, a Feb 2000, Essay 3
corporation’s principal place of business is July 1997, Essay 5
its designated headquarters.
 An executor or personal representative
is deemed to have the citizenship of the
decedent or person being represented.
 A partnership, sole-proprietorship, or
unincorporated association is deemed to be
a domiciliary of the state of every partner/
member/owner.
o Amount in Controversy: The amount in controversy
is based on the damages alleged in good faith in the
Complaint (not the actual award), unless it is legally
certain that the plaintiff cannot recover the specified
amount. A plaintiff may aggregate his claims against
one defendant, or against multiple defendants if all
are joint tortfeasors (where the defendants are jointly
and severally liable). A claim for injunctive relief
is valued by either the benefit to the plaintiff OR the
cost of compliance for the defendant (the value of the
injunction).

04 CIVIL PROCEDURE
■■ Subject Matter Jurisdiction: Supplemental Jurisdiction

• A federal court can only hear cases where it has subject July 2016, Essay 6
HIGH matter jurisdiction, because it is a court of limited July 2015, Essay 2
jurisdiction. A federal court has subject matter jurisdiction Feb 2011, Essay 8
8 of 49 Exams
to hear a claim if: (a) there is a federal question; (b) July 2009, Essay 6
there is diversity of citizenship among the parties; OR (c) July 2008, Essay 5
supplemental jurisdiction is present. Feb 2005, Essay 3
• Supplemental Jurisdiction: If a federal court has original Feb 2004, Essay 4
jurisdiction (subject matter jurisdiction) over some of the Feb 2002, Essay 1
claims in the action, then it may exercise supplemental
jurisdiction over additional state court claims when they arise
from the same “case or controversy”. Generally, such claims
must arise from a common nucleus of operative fact (the
same transaction or occurrence). However, several limitations
exist.
o Supplemental jurisdiction is limited in that it
CANNOT be used to overcome a lack of diversity
(a plaintiff in a diversity case CANNOT assert
supplemental jurisdiction if it would violate complete
diversity). Additionally, under federal statute, a court
CANNOT have supplemental jurisdiction over claims
against third-parties.
o A federal court may decline to exercise supplemental
jurisdiction over State claims when: (a) the claim
raises a novel or complex issue of State law; (b) the
claim substantially predominates over the claim(s) of
which the district court had original jurisdiction; (c)
the federal district court has dismissed all claims
over which it had original jurisdiction; OR (d) in
exceptional circumstances. State claims do not
substantially predominate over federal claims when
the facts needed to prove each claim are identical or
similar.
■■ Subject Matter Jurisdiction: Domestic Relations Exception

• Under the Domestic Relations Exception, federal courts Feb 2010, Essay 6
LOW MUST decline jurisdiction (even when diversity or federal
question is present), when the case primarily involves
1 of 49 Exams
domestic relations matters (applies to cases encompassing the
issuance of a divorce, alimony, or child custody).
• A court should NOT decline jurisdiction when domestic
relations issues are ancillary to the case.

04 CIVIL PROCEDURE
B. Removal
■■ Removal
• A defendant may remove a case to a federal court sitting in Feb 2012, Essay 7
HIGH the State where the claim was filed if: (1) the federal court July 2009, Essay 6
has subject matter jurisdiction (original jurisdiction); (2) July 2007, Essay 2
4 of 49 Exams
all defendants agree; (3) no defendant is a resident of the Feb 1996, Essay 4
forum state; AND (4) removal is sought within 30 days
of either service of the Summons or receiving the initial
pleading (whichever period is shorter). A plaintiff CANNOT
remove a case to federal court. In addition, a case CANNOT
be removed more than one year after commencement in a
diversity action.
• Procedurally, to remove an action to federal court the
defendant must file a Notice of Removal in the federal court
district within the state where the action is pending. The
notice MUST: (1) state the basis for federal court
jurisdiction; AND (2) include copies of the documents filed
in the State court action. The defendant must serve the Notice
of Removal upon all parties, and file a copy with the state
court. Removal is automatic, and the state court may take
no further action in the case once it receives the Notice of
Removal.
C. Abstention Doctrines
■■ Abstention Doctrines
• A federal court may abstain from hearing a case when doing July 2003, Essay 4
MED so would intrude upon the powers of another court. In July 1997, Essay 5
addition, a federal court may stay a case arising from
2 of 49 Exams ambiguous state law to await the outcome of another pending
state court case that may resolve the ambiguity.
• Under the Pullman doctrine, federal courts have discretion
to abstain from hearing cases that arise from unsettled areas
of state law, allowing the state’s highest court to decide the
matter first. The doctrine is applicable when the federal court
is presented with an ambiguous state law and a state court
interpretation of the matter may remove the need to decide the
case on federal grounds.
• Under the Younger doctrine, federal courts may abstain from
hearing constitutional challenges to State action when doing
so would interfere with state judicial proceedings.

04 CIVIL PROCEDURE
• Under the Colorado River doctrine, federal courts should

abstain from hearing cases when there are parallel state
and federal litigations pending. Suits are parallel when the
parties and issues in the cases are substantially the same.
• Under the Burford doctrine, abstention is appropriate
only if federal adjudication would interfere with a state’s
administration of a complex regulatory scheme.
D. Personal Jurisdiction
■■ Personal Jurisdiction
• A federal court MUST have personal jurisdiction over a Feb 2019, Essay 4
HIGH defendant for its judgment to be binding. A federal court can July 2016, Essay 6
exercise personal jurisdiction to the same extent as the State July 2015, Essay 2
9 of 49 Exams
courts where the federal district court is located. Jurisdiction July 2013, Essay 1
over a defendant normally falls into two categories: (1) the July 2010, Essay 7
traditional bases of jurisdiction; and (2) a State’s long-arm Feb 2006, Essay 3
statute. Feb 2000, Essay 3
• Traditional Bases of Jurisdiction: The traditional bases Feb 1999, Essay 4
for asserting personal jurisdiction include: (a) domicile; (b) Feb 1995, Essay 6
transient jurisdiction (presence in the State when served); (c)
consent; or (d) waiver (appearing in the action without
objecting to jurisdiction). The above grounds comport with
MEE TIP
the Constitutional requirements of due process.
• Long-Arm Jurisdiction: To exert personal jurisdiction over Depending on the call of the
a defendant who is not a resident of the forum state: (1) question and the fact pattern,
you will need apply one or both
the forum state must have a long arm statute; AND (2) of the following rules. Generally,
the Constitutional requirements of due process must be when a state’s long-arm statute
met. Where a state’s long-arm statute allows personal is present in the fact pattern, you
jurisdiction to the same extent as the Constitution, then the will need to apply the Long-Arm
Jurisdiction rule. When no long-
long-arm analysis is the same as the constitutional analysis, arm statute is present, you will
which requires: (1) that the defendant have sufficient likely apply the Traditional Bases
minimum contacts with the forum state, (2) so as not to of Jurisdiction rule.
offend traditional notions of fair play and substantial

justice. Both prongs must be satisfied.
o Prong 1 – Minimum Contacts (Contacts &
Relatedness): Sufficient minimum contacts exist when
either general jurisdiction OR specific jurisdiction is
present.

04 CIVIL PROCEDURE
 General jurisdiction exists when the

defendant’s contacts with the forum state
are so substantial and of such nature that
the defendant is essentially at home in the
state. The claim DOES NOT need to relate
to or arise from the defendant’s contacts
in the forum state. An individual must be
domiciled in the state for general jurisdiction
to apply. For a corporation, general
jurisdiction applies where the corporation
is fairly regarded as “at home” (usually
where the corporation is incorporated or
headquartered).
 Specific jurisdiction exists when the suit
arises out of or relates to the defendant’s
contacts with the forum state. There MUST
be a connection between the forum state
and the underlying controversy (principally,
an activity or an occurrence that takes place
in the forum state). When there is no such
connection, specific jurisdiction is lacking
regardless of the extent of a defendant’s
unconnected activities in the state.
 Regularly occurring sales of a product
in a state DOES NOT justify the
exercise of jurisdiction over a claim
unrelated to those sales.
 With respect to conduct via the
internet, a court will consider how
interactive the website is. Generally,
the more interactive a website is, the
more likely a court will find personal
jurisdiction. A passive website (one
that contains only information) has
been held to be insufficient to subject
the owner to jurisdiction. Courts
have held jurisdiction to be proper
where defendants could reasonably
anticipate that defamatory comments
posted online would target readers in
plaintiff’s home state.

04 CIVIL PROCEDURE
o Prong 2 – Fair Play and Substantial Justice (Fairness):

 Even if the minimum contacts test is met,
it MUST be fair and reasonable for the
defendant to be sued in the forum state
(so that traditional notions of fair play and
substantial justice are not offended).
 However, the burden is on the defendant
to show that it would be so unreasonable
to defend himself in the forum state that
it would constitute a violation of Due
Process. The court will consider: the burden
on the defendant of litigating in the forum
state, the state’s interest in providing a
forum; the plaintiff’s interest in a convenient
forum for obtaining relief; and the interests
of the judicial system to efficiently resolve
disputes.
E. Service of Process and Notice
■■ Service of Process and Notice

• In federal court, the Summons and Complaint must be July 2017, Essay 6
HIGH served upon the defendant within 90 days of filing the Feb 2015, Essay 5
Complaint. Otherwise, the court MUST either: (a) dismiss Feb 2009, Essay 5
4 of 49 Exams
the action without prejudice against that defendant; OR (b) July 1995, Essay 6
order that service be made within a specified time. However,
if the plaintiff shows good cause for failing to serve within
90 days, the court MUST extend the time for service for an
appropriate period.
• Service may be made by any person who: (1) is at least 18
years old; AND (2) not a party to the action.
• The method of service must be consistent with the Due
Process Clause, which requires that notice be reasonably MEE TIP
calculated to make the parties aware of the action and give On the exam, apply the
them an opportunity to object. appropriate method of service
o Service upon an Individual: An individual may be of process based upon the type
of party and method of service
served by delivering the Summons and Complaint: mentioned in the essay question.
(a) to the individual personally; (b) to someone
of suitable age and discretion at the individual’s
current dwelling or usual place of abode; (c) to an
agent authorized by appointment or by law to receive
service of process; OR (d) in accordance with the
state law of the forum state or where service is made.

04 CIVIL PROCEDURE
o Service upon a Corporation, Partnership,

or Association: A corporation, partnership, or
unincorporated association may be served: (a) in
accordance with state law of the forum state or where
service is made; OR (b) by delivering the Summons
and Complaint to an officer (i.e. CEO), managing
agent, general agent, or authorized agent (by
appointment or by law) of the corporation.
o Service upon a Foreign Defendant: Generally, a
foreign defendant may be served by any manner not
prohibited by international agreement. However,
a foreign corporation, partnership, or association
CANNOT be served by personal service. A
court CAN authorize service via e-mail if: (1)
no international agreement prohibits it; AND (2)
it satisfies due process (reasonably calculated to
notify the defendant of the action and give him an
opportunity to object).
F. Venue
■■ Venue (Proper Venue & Transfer of Venue)

• Proper Venue: For civil actions brought in federal court, Feb 2018, Essay 5
HIGH venue is proper in any district where: (a) any defendant July 2016, Essay 6
resides (if all defendants are residents of the forum state); (b) July 2013, Essay 1
11 of 49 Exams
where a substantial portion of the claim occurred; (c) Feb 2012, Essay 7
where a substantial part of property is located (where Feb 2005, Essay 3
property is the subject of the action); OR (d) if none of the July 2002, Essay 3
above apply, then venue is proper in any judicial district Feb 2002, Essay 1
in which any defendant is subject to the court’s personal Feb 2000, Essay 3
jurisdiction. Proper venue is determined at the time the suit Feb 1999, Essay 4
is filed; a subsequent move by a party DOES NOT generally Feb 1996, Essay 4
warrant a change of venue. July 1995, Essay 3
o Residence Rules: Residence of an individual is
determined by their domicile (residence and intent to
make the place their permanent home). A business
entity’s residence includes ALL districts where it is
MEE TIP
subject to personal jurisdiction. A non-resident of On the exam, apply the
the U.S. (alien or U.S. citizen living outside the U.S.) applicable transfer of venue rule
based upon whether venue was
may be sued in any judicial district. proper or improper when the
o For tort actions, venue is proper where the alleged case was filed, and/or whether a
tortious acts occurred, but venue is NOT proper where forum-selection clause is at issue.
the only connection is that medical treatment for
injuries was received in the judicial district.

04 CIVIL PROCEDURE
• Transfer of Venue: Transfer of venue and the applicable law

depends on whether venue was proper when the suit was first
filed.
o If venue was proper when the case was filed, the
court MAY transfer venue if: (1) needed for the
convenience of parties and witnesses or interests of
justice; AND (2) the action could have initially been
brought in the receiving court (proper venue, subject
matter jurisdiction, and personal jurisdiction). The
court has discretion whether or not to transfer the
case. Following a transfer, the new court MUST apply
the same substantive law as the original transferor
court.
o If venue was improper when the case was filed, the
court MUST either: (a) dismiss the case; OR (b)
transfer the case to a proper court if the interests
of justice require it. Following a transfer, the law
applied is that of the new transferee court.
o Forum-Selection Clause: Generally, a court will
enforce a contractual forum-selection clause to
transfer venue, UNLESS special factors are present
(i.e. significant/unusual hardships or inequality of
bargaining power). Additionally, the Supreme Court
has held that a forum-selection clause is an important
factor favoring a change of venue, even if the forum-
selection clause is unenforceable under the applicable
state law.
G. Law Applied by Federal Courts
■■Law Applied by Federal Courts: Erie Doctrine, Substance

vs. Procedure, & Supremacy Clause
• The Erie doctrine applies when a federal case is brought under July 2017, Essay 6
HIGH diversity of citizenship jurisdiction. Under the Erie doctrine, Feb 2012, Essay 7
a federal court will apply its own federal procedural laws, Feb 2009, Essay 5
6 of 49 Exams
but must apply state substantive law. July 1999, Essay 3
o Procedural laws include: civil procedure rules, Feb 1997, Essay 5
statute of limitations, burden of proof, and rebuttable July 1995, Essay 3
presumptions.
o Substantive laws include: choice of law rules, statute
of frauds, irrebuttable presumptions, damages, statute
of limitations that condition a substantive right, and
statute of limitations where a borrowing statute was
enacted (a statute providing the shorter of the two
time-periods applies).

04 CIVIL PROCEDURE
• Since choice of law rules are considered substantive law, a

federal court sitting in diversity MUST apply the forum
state’s choice of law rules to determine the applicable state
substantive law in the action. Once the applicable state law
is determined, the federal court must apply that law as the
state court would; it CANNOT make its own independent
judgment on the construction of a law or statute. When no
controlling state case law is available to the federal court for
guidance, the court must predict how the state’s highest court
would rule on the issue.
• However, federal law will apply for matters governed by the
U.S. Constitution, laws passed by Congress, or valid federal
law that preempts state law under the Supremacy Clause.
H. Preliminary Injunctions & Temporary Restraining Orders
■■ Preliminary Injunction
• A preliminary injunction maintains the status quo pending July 2014, Essay 4
MED the outcome of an action in order to protect irreparable July 2005, Essay 6
harm to a party. The court may issue a preliminary injunction
2 of 49 Exams only: (1) upon notice to the adverse party; AND (2) if the
moving party gives security in an amount the court deems
proper (which will be used to reimburse the non-moving
party for any injury caused by the injunction if the moving
party does not succeed on the merits). The Federal Rules of
Civil Procedure allow the court to issue both a restraining
injunction (preventing a party from doing something) OR a
mandatory injunction (compelling a party to do something).
• Under the traditional four-prong test for a preliminary
injunction, the party moving for an injunction must show:
(1) a likelihood of success on the merits; (2) a likely threat of
irreparable harm to the movant; (3) the harm alleged by the
movant outweighs any harm to the non-moving party; AND
(4) an injunction is in the public interest. If the moving
party has an adequate remedy at law (can be compensated
by money damages for any potential loss), then a motion
for a preliminary injunction should be denied. Courts
have granted preliminary injunctions in the following
instances: environmental damage cases (because such harm
is often deemed irreparable); and to enforce non-competition
agreements restricting former employees from soliciting
customers.

04 CIVIL PROCEDURE
■■ Temporary Restraining Order (TRO)

• A Temporary Restraining Order (TRO) is an emergency July 2014, Essay 4
MED remedy used to maintain the status quo pending the July 2005, Essay 6
outcome of a hearing or application (usually a preliminary Feb 1997, Essay 5
3 of 49 Exams injunction application), and is only available when the
plaintiff will suffer immediate and irreparable harm. A TRO
can only be granted for a limited amount of time, so a party
must move for a preliminary injunction if it seeks to maintain
the status quo pending the outcome of the action.
• When deciding to grant a TRO, a court will analyze the same
factors as a preliminary injunction. The moving party must
show: (1) a likelihood of success on the merits; (2) a likely
threat of irreparable harm to the movant; (3) the harm
alleged by the movant outweighs any harm to the non-moving
party; AND (4) an injunction is in the public interest. If
granted, the moving party must give security in an amount the
court deems proper.
• A TRO can be issued ex parte (without notice to an adverse
party).
o For an ex parte TRO, the plaintiff or his attorney
MUST: (1) provide specific facts in sworn
statement that clearly show that immediate and
irreparable injury, loss, or damage will result to
the movant before the adverse party can be heard in
opposition; AND (2) certify in writing any efforts
made to give notice to the adverse party or why notice
should not be required.
o An ex parte TRO automatically expires after 14 days
(unless the court sets a shorter expiration). However,
a court can extend the expiration of the TRO: (a) for
good cause; OR (b) if the opposing party consents to
the extension. An adverse party may move to dissolve
or modify an ex parte TRO on two-day’s notice to the
moving party.
I. Pleadings
■■ Amendments to Pleadings & Relation Back Doctrine

• A party may amend a pleading once as of right within 21 July 2017, Essay 6
MED days after service of: (a) the original pleading; OR (b) a July 2012, Essay 7
responsive pleading or pre-answer motion to the original July 2006, Essay 6
3 of 49 Exams pleading. In all other cases, a party can only amend a
pleading: (a) with the opposing party’s written consent; OR
(b) with leave of the court upon motion, which should be
freely given when justice so requires. Usually, a party will

04 CIVIL PROCEDURE
make a motion to amend a pleading to add claims, parties, or

affirmative defenses.
o Amendment to Add Affirmative Defenses: In
responding to a pleading, a party must set forth all
affirmative defenses to the claims alleged. If the
party fails to do so and wishes to add an affirmative
defense, the pleading MUST be amended. The
following defenses are deemed waived if not included
in the defendant’s first response (answer or pre-
answer motion) to the Complaint: (1) lack of personal
jurisdiction; (2) improper venue; (3) insufficient
process; AND (4) insufficient service of process.
o However, courts have allowed a motion to be amended
to include a defense or objection inadvertently omitted
(even for waivable defenses) provided that such
action is prompt AND prior to any hearing on the
original motion (i.e. two days after original motion
and before the hearing on the motion).
• An amendment to a pleading relates back to the date of the
original pleading when: (a) the amendment asserts a claim
or defense that arose out of the same conduct, transaction, or
occurrence as the original pleading allegations; OR (b) the
law that provides the applicable statute of limitations allows
the relation back.
• HOWEVER, an amendment to change a party or party
name only relates back if: (1) the amendment concerns the
same conduct, transaction, or occurrence as the original
pleading allegations; (2) the new party received notice of the
original action within 90 days of filing so that it will not be
prejudiced in defending on the merits; AND (3) the new party
knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper
party’s identity.
■■ Counterclaims
• A counterclaim is a claim brought by a defendant against a July 2008, Essay 5
MED plaintiff. There are two types of counterclaims: permissive July 2007, Essay 2
and compulsory.
2 of 49 Exams • A pleading MAY state a permissive counterclaim, which
is a counterclaim against an opposing party that is not
compulsory.
• A compulsory counterclaim MUST be stated in the
party’s pleading, or is otherwise deemed waived. A
compulsory counterclaim is a claim that: (1) arises out of
the same transaction or occurrence as the opposing party’s

04 CIVIL PROCEDURE
claim; AND (2) the claim does not require adding another
party whom the court cannot acquire jurisdiction.
o Same Transaction or Occurrence Test: To determine
whether two claims arise out of the same transaction
or occurrence for counterclaim purposes, federal
courts look at four factors: (1) whether the issues of
fact and law raised by the claim and counterclaim are
largely the same; (2) whether res judicata would bar
a subsequent suit on the counterclaim; (3) whether
substantially the same evidence supports or refutes
plaintiff’s claim and defendant’s counterclaim; and
(4) whether there is any logical relation between the
claim and counterclaim.
o The presence of any of the above factors supports that
the counterclaim arises out of the same transaction or
occurrence as the original claim.
■■ Cross-Claims
• A pleading may state a claim against a co-party (i.e. co- Feb 2011, Essay 8
LOW defendant) as a cross-claim if the claim arises out of the
same transaction or occurrence as the original action
1 of 49 Exams
or counterclaim. The cross-claim may include a claim
that a co-party is liable for claims asserted against it
(i.e. indemnification, contribution).
• To determine whether two claims arise out of the same
transaction or occurrence for cross-claim purposes, federal
courts look at four factors: (1) whether the issues of fact
and law raised by the claim and cross-claim are largely the
same; (2) whether res judicata would bar a subsequent
suit on the cross-claim; (3) whether substantially the same
evidence supports or refutes plaintiff’s claim and defendant’s
cross-claim; and (4) whether there is any logical relation
between the claim and cross-claim. The presence of any of
the above factors supports that the cross-claim arises out of
the same transaction or occurrence as the original claim.
J. Rule 11
■■ Rule 11 – Representations to the Court

• Under Rule 11, all papers served in the litigation Feb 2018, Essay 5
MED (i.e. pleadings, motions) MUST be signed by an attorney Feb 1995, Essay 3
of record (or by a party personally, if the party is
2 of 49 Exams
unrepresented). When presenting the same to the court, that
party certifies that: (1) it is not being presented for any

04 CIVIL PROCEDURE
improper purpose (to harass, cause unnecessary delay, or

needlessly increase the cost of litigation); (2) the claims,
defenses, and other legal contentions are warranted and
non-frivolous; (3) the factual contentions have evidentiary
support or will likely have evidentiary support after further
discovery; AND (4) the denials of factual contentions
are warranted or reasonably based on lack of information.
The above certification must be to the best of the person’s
knowledge, information, and belief (formed after an inquiry
reasonable under the circumstances).
• Rule 11 DOES NOT apply to discovery (disclosures,
discovery requests, responses, objections) OR discovery
motions.
■■ Rule 11 – Sanctions Imposed

• Whether a Rule 11 violation has occurred and what sanctions Feb 2018, Essay 5
MED (if any) to impose are matters within the discretion of the trial Feb 1995, Essay 3
court.
2 of 49 Exams
• Sanctions Against an Attorney/Party/Law Firm: The court
(by motion or on its own) may issue sanctions against an
attorney, law firm, or party for failing to comply with Rule
11. Absent exceptional circumstances, a law firm is jointly
responsible for a violation committed by its partner, associate,
or employee. A court CANNOT issue monetary sanctions
against a client for an unwarranted claim, defense, or legal
contention made by their attorney.
• Nature of Sanctions: A sanction imposed under this rule
must be limited to what will deter repetition of similar
conduct, and may include: (i) non-monetary directives (i.e.
striking paper/pleading, reprimand, censure, referring matter
to disciplinary authority); (ii) an order to pay a penalty into
court; or (iii) an order directing payment to the movant of all
or part of the reasonable attorney’s fees and other expenses
directly resulting from the violation (if imposed on motion
and warranted for effective deterrence).
o In determining what sanction to impose, the court may
consider any relevant factor, including: if the conduct
was willful, negligent, or a pattern of activity; what
effect it had on the litigation and the pleading; and
whether the person was an attorney.

04 CIVIL PROCEDURE
■■ Rule 11 – Procedure for Filing a Sanctions Motion

• A party CANNOT file a Rule 11 motion for sanctions with the Feb 2018, Essay 5
LOW court without first (1) serving the motion on the offending
party, and (2) then giving their opponent 21 days to withdraw
1 of 49 Exams
or correct the offending pleading or paper. If the 21-day
period passes, and the motion/paper is not withdrawn or
corrected, the motion may be filed with the court. The motion
must be made separately (from other motions), and must
describe the conduct in violation of Rule 11.
K. Joinder of Parties and Claims
■■ Permissive Joinder of Parties

• Multiple Plaintiffs: Under the Federal Rules of Civil
MEE TIP
MED Procedure, multiple plaintiffs MAY join in one action if:
(1) joint and several relief is asserted by them or the claim On the exam, apply the
3 of 49 Exams arises out of the same transaction or occurrence; (2) a appropriate joinder rule(s)
depending on the parties
common question of law or fact to all plaintiffs exists; AND (plaintiffs or defendants) joined
(3) subject matter jurisdiction exists for each claim. in the action.
• Multiple Defendants: Multiple defendants MAY be joined
in one action if: (1) joint and several relief is asserted Feb 2010, Essay 6
against them or the claim arises out of the same transaction July 2009, Essay 6
or occurrence; (2) a common question of law or fact to all Feb 2004, Essay 4
defendants exists; AND (3) subject matter jurisdiction exists
for each claim.
• Under the logical relationship test, all logically related
events entitling a person to institute a legal action against
another are generally within the meaning of “transaction and
occurrence” for permissive joinder.
• Misjoinder of parties is NOT a ground for dismissing an
action. Instead, the court may add or drop a party on just
terms. The court may also sever any claim against a party.
■■ Required Joinder of Parties

• A party MUST be joined in an action if: (1) that party is a July 2008, Essay 5
MED necessary party; AND (2) joinder is feasible. If a party has July 1998, Essay 3
not been joined as required, the court MUST order that the
2 of 49 Exams party be joined to the action. A party who refuses to join as a
plaintiff may be joined as either a defendant or an involuntary
plaintiff.

04 CIVIL PROCEDURE
• A party is necessary if: (a) the court cannot grant complete

relief among existing parties without the absent party; (b)
the absent party claims an interest in the action that would
be impaired or impeded (as a practical matter) if that person
is not joined; OR (c) the party’s absence would leave an
existing party subject to a substantial risk of multiple liability
or inconsistent obligations. Courts have held joint tortfeasors
to be permissive, not necessary parties.
• Joinder is feasible when: (1) joinder will not remove
subject matter jurisdiction; AND (2) the court has personal
jurisdiction over the necessary party.
• If joinder is NOT feasible, the court will consider the
following factors when deciding whether to continue or
dismiss the action: (1) the extent to which a judgment in
the party’s absence might prejudice that party or the existing
parties; (2) the extent to which any prejudice could be
lessened or avoided; (3) whether an adequate judgment in
the party’s absence could be rendered; and (4) whether the
plaintiff would have an adequate remedy if the action were
dismissed.
■■ Intervention as of Right & Permissive Intervention

• The Federal Rules of Civil Procedure provide two avenues July 2014, Essay 4
LOW for non-party intervention in an action.
• Intervention as of Right: A court MUST permit intervention
1 of 49 Exams
as a matter of right if the non-party can demonstrate: (1)
the application to intervene is timely; (2) an interest in the
subject matter of the action; (3) that the protection of this
interest would be impaired because of the action; AND (4)
that the non-party’s interest is not adequately represented by
existing parties to the litigation. The above-test is satisfied
whenever disposition of the action would put the non-party at
a practical disadvantage in protecting its interest. In addition,
a non-party has the right to intervene when a federal statute
provides an unconditional right to do so.
• Permissive Intervention: If intervention of right is not
warranted, a court MAY still allow a non-party to intervene
permissively where the non-party: (1) files a timely
motion; AND (2) either (a) has a claim or defense that
shares a common question of law or fact with the main
action; or (b) is given a conditional right to intervene by
a federal statute. However, under permissive intervention,
the court must consider whether the intervention will unduly
delay or prejudice the adjudication of the original parties’
rights.

04 CIVIL PROCEDURE
■■ Impleader (Third-Party Actions)

• The Federal Rules of Civil Procedure allows a defendant Feb 2015, Essay 5
LOW to bring a third-party into an action ONLY IF (1) the third-
party is or may be liable to the defendant, (2) for all or part
1 of 49 Exams
of a judgment against the defendant in the action. Claims
merely arising out of the same transaction or occurrence
are insufficient UNLESS some derivative liability exists
(i.e. indemnification or contribution).
• To commence an action against a third-party, the defendant
(third-party plaintiff) must serve a Summons and Third-
Party Complaint upon the third-party. Leave of the court is
REQUIRED if the defendant seeks to file the Third-Party
Complaint more than 14 days after serving its original
Answer.
■■ Class Action Requirements & Certification

• One or more representative members of a class may sue or July 2003, Essay 4
LOW be sued on behalf of the entire class if: (1) the class is so
numerous that joinder of all members is impracticable; (2)
1 of 49 Exams
there are questions of law or fact common to the class; (3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class; AND (4) the
representative parties (including counsel) will fairly and
adequately protect the interests of the class. These are
known as the requirements of numerosity, commonality,
typicality, and adequacy of representation.
• Once the above four requirements are met, the class will
be certified if: (a) separate actions would create a risk of
inconsistent adjudications or harm the interests of other
class members; (b) the party opposing the class has acted or
refused to act on grounds that apply generally to the class and
the grounds of relief would be appropriate to the class as a
whole; OR (c) common questions of law or fact to the class
members predominate over any questions affecting individual
members and a class action is superior to other available
methods to adjudicate the case.
• Courts are reluctant to grant class certification for personal
injury claims where the plaintiffs have highly individualized
injuries or where personal injury claims are grouped with
non-personal injury claims.

04 CIVIL PROCEDURE
L. Discovery
■■ Discoverable Information (Relevant & Proportional Standard)

• A party in a lawsuit may obtain discovery of all non- Feb 2007, Essay 3
LOW privileged information that is: (1) relevant to any party’s
claim or defense; AND (2) proportional to the needs of the
1 of 49 Exams
case. Information within the scope of discovery need not be
admissible in evidence to be discoverable.
o Proportionality is determined by considering: (1) the
importance of the issues at stake in the action; (2) the
amount in controversy; (3) the parties’ relative access
to relevant information; (4) the parties’ resources; (5)
the importance of the discovery in resolving the
issues; and (6) whether the burden or expense of the
proposed discovery outweighs its likely benefit.
• When discovery is resisted for reasons related to
confidentiality or privacy, the court must balance the interest
of the party seeking disclosure against the interests of the
party resisting disclosure. In such a situation, a court has
discretion to limit the scope of discovery, order an in camera
review of documents to determine if they contain sensitive
information, or order discovery subject to a confidentiality
order. Personnel records have been held to be discoverable.
• Once a person reasonably anticipates litigation, that
person has a duty to preserve ALL relevant evidence and
cannot destroy the same, even if litigation has not yet
been commenced. Federal courts have the inherent power
to sanction parties for any abuse of the judicial process,
including destroying or failing to preserve relevant evidence.
■■ Depositions
• A party is permitted to conduct up to 10 depositions. Without July 2002, Essay 3
LOW leave of court, a party is permitted to conduct a deposition of
any person or party so long as the deposition is: (1) limited
1 of 49 Exams
to one day of no more than 7 hours; AND (2) proper
notice is given. Unless the parties have stipulated otherwise,
a party MUST obtain leave of the court: (a) to take more
than 10 depositions; (b) if the person has already been
deposed; OR (c) if it is seeking a deposition before the parties
“meet and confer” (the Rule 26(f) conference). An entity
(i.e. corporation) must designate a person to represent it for
a deposition, and may designate different people to testify on
different topics.

04 CIVIL PROCEDURE
• Notice: A party who wants to depose a person by oral

questions must give reasonable written notice to every
party to the action. The notice must state the time and place
of the deposition, and the deponent’s name and address (if
known). If the name is unknown, the notice must provide
a general description sufficient to identify the person or the
particular class or group to which the person belongs.
• No Subpoena Required to Depose a Party: A subpoena is
NOT required to depose an opposing party. A party may be
subject to sanctions for (a) failing to appear or (b) failing to
provide the deponent for a deposition, even if the party is
beyond the court’s subpoena power.
■■ Electronically Stored Information & Spoliation Sanctions

LOW privileged information that is: (1) relevant to any party’s
claim or defense; AND (2) proportional to the needs of the
1 of 49 Exams
case. This includes electronically stored information (ESI),
such as e-mails, text messages, and digital files. When a party
anticipates litigation, it must suspend its routine document
retention/destruction policy and put in place a “litigation
hold” to ensure the preservation of relevant documents.
• A party may be sanctioned under Rule 37(e) for failing to
preserve ESI only if: (1) the ESI should have been preserved
in the anticipation of litigation; (2) the party failed to
take reasonable steps to preserve it; AND (3) it cannot be
restored or replaced through additional discovery. Only
when all three elements are met, the rule is applicable.
• If Rule 37(e) applies, then: (a) the court may order measures
to cure any prejudice to a party; OR (b) if the party acted
intentionally, the court may: (i) presume that the lost
information was unfavorable to the party; (ii) instruct the jury
that it may or must presume the information was unfavorable
to the party; (iii) dismiss the action; or (iv) enter a default
judgment.
■■Rule 26(g) – Signing Disclosures & Sanctions for Improper

Certification
• Under Rule 26(g), all discovery papers served in the litigation Feb 1995, Essay 3
LOW (discovery requests, responses, objections, or disclosure)

MUST be signed by an attorney of record (or by a party
1 of 49 Exams
personally, if the party is unrepresented).

04 CIVIL PROCEDURE
o When signing any disclosure, the party certifies that it

is complete and correct as of the time it was made.
o When signing any other discovery document, the party
certifies that it is: (1) consistent with the Federal
Rules of Civil Procedure and is non-frivolous; (2)
not being presented for any improper purpose (to
harass, cause unnecessary delay, or needlessly increase
the cost of litigation); AND (3) not unreasonable,
unduly burdensome, or unduly expensive considering
the case, issues at stake, and prior discovery.
• The court (by motion or on its own) may issue sanctions
against an attorney, law firm, or party for failing to comply
with Rule 26(g). If a person violates this rule without
substantial justification, the court MUST impose an
appropriate sanction, which includes ordering the violating
party or attorney to pay the reasonable expenses, including
attorney’s fees, caused by the violation.
■■ Rule 26(a) Initial Disclosures

• Without awaiting a discovery request, a party MUST provide Feb 2001, Essay 5
LOW the following initial disclosures to the other parties: (1)
the contact information of individuals likely to have
1 of 49 Exams
discoverable information and the information they are likely
to possess; (2) a copy or description of all documents,
electronically stored information, and tangible things the
party may use to support its claims or defenses (unless the
use would be solely for impeachment); (3) computation
of each category of damages claimed by the disclosing
party; AND (4) any insurance agreement that may be liable
to satisfy a possible judgment in the action.
• The above disclosures MUST be made within 14 days after
the Rule 26(f) conference between the parties. If a party fails
to provide any of the above disclosures, that party is NOT
allowed to use that witness or information on a motion, at
a hearing, or at a trial UNLESS the failure was substantially
justified or is harmless.
■■ Attorney Work Product Doctrine

MED privileged information that is: (1) relevant to any party’s Feb 2007, Essay 3
claim or defense; AND (2) proportional to the needs of the Feb 1995, Essay 3
3 of 49 Exams case.

04 CIVIL PROCEDURE
• The attorney work product doctrine protects ALL materials

prepared by an attorney or his agents in anticipation of
or during litigation. Such materials are protected from
disclosure UNLESS a party can show that: (1) a substantial
need for the materials exists; AND (2) a substantial
equivalent of the materials cannot be obtained without undue
hardship.
o An insurance company’s investigative report of an
insured’s claim is generally not considered to have
been prepared in anticipation of litigation because
it’s not prepared in response to a threat of immediate
litigation.
• When a party claims that requested information is protected
as work product, the party must disclose the existence of the
material in sufficient detail to enable other parties to assess
the claim of privilege (known as a privilege log).
M. Pretrial Conference and Order
■■ Pretrial Conference and Order

MEE TIP
• The court may order the attorneys and any pro-se parties to
On the exam, apply the specific
MED appear for one or more Pretrial Conferences to control the Pretrial Conference & Order
management of the case, including scheduling or to discuss rule(s) based upon the fact
3 of 49 Exams settlement. pattern and the call of the essay
• Scheduling Order: The court must issue a scheduling question.
order (except for certain actions exempted by local rule):

July 2006, Essay 6
(a) after receiving the parties’ report for the Rule 26(f)
Feb 2001, Essay 5
conference; OR (b) after consulting with the parties’
July 2000, Essay 3
attorneys and any unrepresented parties at a scheduling
conference.
• Modifying a Scheduling Order: The schedule in a Scheduling
Order may be modified only: (1) for good cause; AND (2)
with the judge’s consent.
• Attendance at Pretrial Conferences: A represented party must
authorize at least one of its attorneys to appear for a pretrial
conference.
• Sanctions: The court (on motion or on its own) may issue
sanctions if a party or its attorney: (a) fails to appear; (b)
is substantially unprepared to participate; (c) does not
participate in good faith; OR (d) fails to obey a scheduling
or other pretrial order. Sanctions the court may issue
include: (i) prohibiting the disobedient party from supporting
or opposing designated claims or defenses; (ii) striking all
or part of the pleadings; (ii) dismissing all or part of the
action; or (iv) rendering a default judgment against the
disobedient party.

04 CIVIL PROCEDURE
• Pretrial Orders: After any pretrial conference, the court may

issue an order reciting the action taken. This order controls
the course of the action unless the court subsequently modifies
it.
• Final Pretrial Conference and Orders: The court may hold a
final pretrial conference to formulate a trial plan, including
a plan to facilitate the admission of evidence. Under the
Federal Rules of Civil Procedure, a court may issue an order
specifying the issues to be heard at trial. The conference must
be held as close to the start of trial as is reasonable, and must
be attended by at least one attorney who will conduct the trial
for each party and by any unrepresented party. The court
may modify the Final Pretrial Conference Order only to
prevent manifest injustice. The rule for modifying a Final
Pretrial Order takes precedence over the standard to amend a
pleading.
N. Motions
■■ Motion to Dismiss & Motion for Judgment on the Pleadings

• Motion to Dismiss: Under Rule 12(b), a Motion to Dismiss July 2017, Essay 6
HIGH may be made prior to filing an Answer. A Motion to Dismiss Feb 2011, Essay 8
requires the court to: (1) consider the facts in the light most July 2004, Essay 6
4 of 49 Exams
favorable to the non-moving party; AND (2) determine July 1995, Essay 6
whether there is any basis upon which relief can be granted
for the non-moving party. If there is any basis for relief,
the court MUST deny the motion. The Court DOES NOT
evaluate the merits of the case.
• Motion for Judgment on the Pleadings: A motion for any
non-waivable defense may be made at any time early enough
NOT to delay trial. However, it is referred to as a Motion for
Judgment on the Pleadings if it is made after the defendant
has answered.
• Grounds for Motion and Waiver: A party may bring a
motion in order to dismiss one or more claims on certain
specified grounds. Such grounds include: (1) lack of subject
matter jurisdiction; (2) lack of personal jurisdiction; (3)
improper venue; (4) insufficient process; (5) insufficient
service of process; (6) failure to state a claim upon which
relief can be granted; and (7) failure to join a necessary
party. The grounds listed in (2)-(5) above are deemed
waived if NOT raised in the first responsive pleading or
Motion to Dismiss. A motion for lack of subject-matter
jurisdiction cannot be waived, and may be made at any time,
even on appeal.

04 CIVIL PROCEDURE
■■ Motion for Summary Judgment

• A court will grant a Motion for Summary Judgment when: July 2012, Essay 7
HIGH (1) there is no genuine issue of material fact; AND (2) the Feb 2003, Essay 5
movant is entitled to judgment as a matter of law. When Feb 1998, Essay 4
5 of 49 Exams
reviewing the motion, the court MUST view the evidence in July 1996, Essay 4
the light most favorable to the non-moving party. July 1995, Essay 6
o An issue of material fact is genuine if the evidence is
such that a reasonable jury could return a verdict for
the nonmoving party.
o As to materiality, only disputes over facts that might
affect the outcome of the suit will properly preclude
the entry of summary judgment. Factual disputes that
are irrelevant or unnecessary will NOT be counted.
• Where the moving party presents evidence of facts that would
defeat the non-moving party’s claim, the non-moving party
MUST offer evidence of specific facts showing that there is a
genuine issue for trial by affidavits or other evidence.
• A party may move for summary judgment on the entire case
OR on certain issues (partial summary judgment), and may
file the motion at any time until 30 days after the close of all
discovery (unless a different time is set by local rule or court
order).
• If a Motion to Dismiss (or Motion for Judgment on the
Pleadings) presents matters outside the pleadings, the
court may treat the motion as a Motion for Summary
Judgment. When this occurs, all parties must be given a
reasonable opportunity to present evidence that is pertinent to
the motion.
■■ Motion for Judgment as a Matter of Law
• A Motion for Judgment as a Matter of Law (JMOL) may Feb 2008, Essay 6
MED be made at any time before the case is submitted to the July 2000, Essay 3
jury. The motion must specify the judgment sought and the July 1999, Essay 3
3 of 49 Exams law and facts that entitle the movant to the judgment. The
motion will be granted if: (1) the non-moving party has
been fully heard on an issue during a jury trial; AND (2) the
court finds that a reasonable jury would not have a legally
sufficient basis to rule in favor of the non-moving party on
that issue. A motion for JMOL was formerly known as a
Motion for Directed Verdict.
o On a motion for JMOL, the court MUST draw all
reasonable inferences in the light most favorable
to the opposing party, and cannot substitute
other inferences that might be regarded as more

04 CIVIL PROCEDURE
reasonable. It is the function of the jury as the

traditional finder of the facts, and not for the Court,
to weigh conflicting evidence and inferences, and
determine the credibility of witnesses. Thus, a
court CANNOT reverse a denial of a motion for
JMOL unless the jury’s factual findings are: (a) not
supported by substantial evidence; OR (b) if the legal
conclusions from the verdict are not supported by the
factual findings.
• A party may renew its motion for JMOL only if that party
moved for JMOL before the case was submitted to the jury. A
renewed motion for JMOL must be filed within 28 days of the
entry of judgment. In ruling on the renewed motion, the court
may: (a) allow judgment on the verdict (if the jury returned
a verdict); (b) order a new trial; OR (c) direct the entry of
JMOL. A motion for Renewed JMOL was formerly known as
a Motion for Judgment Notwithstanding the Verdict.
• A court may wisely reserve ruling on a motion for JMOL
made at the close of the evidence for a post-verdict decision
because a jury verdict may moot the issue and because a
pre-verdict ruling gambles a reversal that may result in a new
trial.
■■ Motion for a New Trial

• A Motion for a New Trial MUST be filed no later than Feb 2008, Essay 6
LOW 28 days after the entry of judgment. The court may
grant a Motion for a New Trial on the entire case or on
1 of 49 Exams
particular issues for any reason for which a new trial has
been previously granted in federal court. Such reasons
include: (1) an error at trial that makes the judgment unfair
(i.e. incorrect jury instructions or evidentiary ruling); (2)
new evidence surfaced that could not have been obtained with
due diligence for the original trial; (3) prejudicial misconduct
of a party, attorney, third-party, or juror; (4) the judgment
was against the weight of evidence; or (5) the verdict was
excessive or inadequate.
• Since the credibility of witnesses is for the jury to decide, it is
an invasion of the jury’s province to grant a new trial merely
because the evidence was sharply in conflict.

04 CIVIL PROCEDURE
O. Verdicts and Judgments
■■ Preclusive Effect of a Default Judgment

• A default judgment will have a preclusive effect if the July 2007, Essay 2
LOW rendering court had jurisdiction over the claims and the
parties to the action (both subject matter jurisdiction and
1 of 49 Exams
personal jurisdiction).
• A state court MUST give a judgment rendered in a federal
diversity action the same effect it would accord a judgment
rendered in a state court under state law. States vary as to the
extent of preclusion a default judgment is given. However, a
default judgment bars a party from asserting compulsory
counterclaims that could have been raised in the original
action.
P. Claim Preclusion & Issue Preclusion
■■ Claim Preclusion (Res Judicata)

• Claim Preclusion (res judicata) precludes the parties in an Feb 2013, Essay 5
MED action from subsequently re-litigating any claim that was or Feb 2003, Essay 5
could have been raised in that action. Claim preclusion has
2 of 49 Exams four elements: (1) the parties are identical or in privity; (2)
the judgment in the prior action was rendered by a court of MEE TIP
competent jurisdiction; (3) the prior action was concluded
by a final judgment on the merits; AND (4) the same claim On the exam, if the party in the
second action was NOT a party in
was involved in both actions (the claim arises out of the same the first action, then apply those
transaction or occurrence as the previously litigated claim). specific claim preclusion rule(s).
• Separate Actions Against Joint Tortfeasors: A plaintiff CAN
bring separate actions against alleged joint tortfeasors whose
liability are joint and several, but CANNOT bring separate
actions for joint tortfeasors whose liability is derivative.
• Parties in Privity: Generally, only a party to the first action is
bound by the prior judgment. However, an exception exists
when the party in the second action was in sufficient privity
with a party in the first action. The Supreme Court has
found sufficient privity in the following situations: (1) a
party who agrees to be bound by the action; (2) a substantive
legal relationship between the two parties (i.e. preceding and
succeeding property owners, bailee and bailor, and assignee
and assignor); (3) a party that was adequately represented in
a class action or by a trustee, guardian, or other fiduciary; (4)
the party assumed control over the first action; (5) a party

04 CIVIL PROCEDURE
seeking to re-litigate through a proxy; and (6) when a special

statutory scheme expressly forecloses successive litigation by
non-parties (i.e. bankruptcy and probate proceedings). Close
family relationships by themselves are NOT sufficient to
establish privity.
■■ Issue Preclusion (Collateral Estoppel)

• Issue Preclusion (collateral estoppel) precludes a party from Feb 2013, Essay 5
MED attempting to retry an issue if there has been a final judgment Feb 2003, Essay 5
on the merits by a court of competent jurisdiction. Issue July 2001, Essay 7
3 of 49 Exams preclusion may be invoked if: (1) a valid and final judgment
was rendered in the first action; (2) the issue is identical
to the issue decided in the prior action; (3) the issue was
actually litigated, determined, and essential in the prior
action; AND (4) the party against whom enforcement is
sought against had a full and fair opportunity to litigate the
issue in the first action.
• Issue preclusion may be used both to defend a claim/action
and on offense to support a claim/action. Additionally, issue
preclusion may be used even if the second action contains
a new claim. A judgment entered pursuant to settlement
CANNOT be used for issue preclusion purposes because no
determination by the court was made.
• Generally, a non-party to the first action CAN assert issue
preclusion against a party to that action if the four-part test
above is satisfied. However, the Supreme Court has suggested
that issue preclusion is NOT appropriate where a plaintiff in
the new action (who was a non-party in the first action) could
have easily joined the first action.
Q. Appeals
■■ Appeals: Final Judgment Rule & Exceptions

• Final Judgment Rule: In federal court, a party may only July 2011, Essay 5
HIGH appeal from a final judgment or decision (known as the “final July 2006, Essay 6
judgment rule”). A final judgment/decision is one which July 2001, Essay 7
4 of 49 Exams
ends the litigation on the merits (all claims are resolved), Feb 1996, Essay 4
and leaves nothing for the court to do but execute the
judgment. Appeal is thereby precluded from any decision
that adjudicates some but not all claims in the action, as MEE TIP
well as from any decision which is tentative, informal, or
On the exam, apply any
incomplete. applicable exceptions to the Final
• Appeals must be filed within 30 days after entry of the Judgment Rule based upon the
judgment appealed from. fact pattern and the call of the
essay question.

04 CIVIL PROCEDURE
• Several exceptions to the final judgment rule exist:

o Rule 54(b) Exception: Under the Federal Rules of
Civil Procedure, an appeal is allowed when: (1) the
action has multiple parties or multiple claims; (2)
the court directs entry of a final judgment for some
of the claims or parties; AND (3) the court expressly
determines that there is no just reason for delay. If
all the above elements are NOT met, then any appeal
must wait until after a final judgment for the entire
case.
o Statutory Exceptions: Under federal law, a party may
immediately appeal certain court orders as of right
relating to: (i) injunctions; (ii) receiverships; (iii)
orders affecting the possession of property; (iv)
liability in an admiralty action; and (v) patent
infringement orders which would be final except for
an accounting.
o Certified Appeal Exception: Under federal law, 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. The application for an
appeal under this rule must be made within ten days
after the entry of the order.
 A judge will typically certify an appeal when
the order involves: (i) a controlling question
of law, (ii) which there is substantial
ground for difference of opinion, and (iii) an
immediate appeal may materially advance
the ultimate termination of the litigation.
o Collateral Order Doctrine: The collateral order
doctrine allows an immediate appeal when the
interlocutory order: (1) conclusively determines
the disputed question; (2) resolves an important
issue completely separate from the merits of the
action; AND (3) is effectively unreviewable on appeal
from a final judgment. This doctrine will only apply
to a small class of decisions. The Supreme Court
has held that the collateral order doctrine DOES
NOT allow an interlocutory order concerning the
enforcement of a forum selection clause because the
order is not effectively unreviewable on appeal from
final judgment.

04 CIVIL PROCEDURE
o Writs of Mandamus and Prohibition: When there

is an abuse of judicial authority by a trial court, a
party may seek a writ of mandamus or prohibition
to have a federal appellate court review the trial
court’s ruling. However, the writ of mandamus (an
application for the court to act) or writ of prohibition
(an application for the court to end litigation) are
issued only in exceptional circumstances. A party
CANNOT use the writ of mandamus or prohibition
to correct an ordinary error by the district
court. The party seeking mandamus/prohibition has
the burden of showing that its right to issuance of the
writ is clear and indisputable.
 The writs have been invoked when a court
acts outside its jurisdiction or when the court
fails to follow court rules. Such instances
have included: (i) unwarranted judicial
action threatened to embarrass the Executive
Branch in conducting foreign relations; (ii) it
was the only means of forestalling intrusion
by the federal courts on a delicate area of
federal-state relations; (iii) it was necessary
to confine a lower court to the appellate
court’s mandate; and (iv) where a district
judge displayed a persistent disregard of the
Rules of Civil Procedure.
o Pendent Appellate Jurisdiction: Under the doctrine
of pendent appellate jurisdiction, a party may seek
to have a non-final order reviewed along with
another appealable order currently pending before
the appellate court. However, the doctrine is only
appropriate when: (a) a non-appealable decision
is inextricably intertwined with an appealable
decision; OR (b) when review of the non-appealable
decision is necessary to ensure a meaningful review
of the appealable decision.
o Certification of Class Action: Under the Federal
Rules of Civil Procedure, an order granting or denying
class-action certification may be appealed when: (1)
a petition for permission to appeal is filed within 14
days after the order is entered; AND (2) the Court
of Appeals agrees to hear the appeal (the court has
discretion). An appeal does not stay proceedings in
the district court unless the district court judge or the
Court of Appeals so orders it.

05 CONFLICT OF LAWS
MEE TIP MEE TIP

On the exam, Conflict of Laws
Pay particular attention to the essay question, as it may instruct you issues are tested in combination
which choice of law approach to apply or analyze. For example, on with other subject areas (i.e. civil
the July 2017 MEE (Essay 6), the question provided the approaches procedure), and do not appear as
stand-alone essay questions.
used by the two states (i.e. “State A follows the Restatement (Second)
of Conflict of Laws.” and “…State B follows the lex loci contractus
approach to choice of law in contract matters.”).
In addition, on the Feb. 2009 MEE (Essay 5), the question provided
the approaches used by the two states (i.e. “To address choice-of-
law problems, State A follows the “most significant relationship”
approach of the Restatement (Second) of Conflict of Laws. State
B applies the “vested rights” approach of the Restatement (First) of
Conflict of Laws.”). If no guidance is given as to what approach
to use, then analyze all three choice of law theories in conjunction
with the specific rules for the type of action/issue (i.e. tort,
contracts, real property, forum selection clause, etc.).
A. Choice of Law Theories
■■ Choice of Law Theories: Traditional Vested Rights Approach

• Under the traditional vested rights approach, the law of July 2008, Essay 7
MED the state in which the transaction or event occurred is July 1998, Essay 3
applied (i.e. the place of the wrong or injury, where the
2 of 49 Exams contract was formed or is to be performed, or where the
real property is located).
■■ Choice of Law Theories: Most Significant Relationship Approach

• Under the Restatement (Second) of Conflict of Laws, the Feb 2009, Essay 5
HIGH laws of the state having the most significant relationship July 2008, Essay 7
to the transaction and the parties will govern the July 1998, Essay 3
3 of 49 Exams
action. Under this approach, courts consider various
factors dependent on the type of action (i.e. torts)
to determine the state that has the most significant
relationship to the action.
■■ Choice of Law Theories: Interest Analysis Approach

• Under the governmental interest analysis approach, July 1998, Essay 3
HIGH the court weighs the interests of the states Feb 1997, Essay 5
involved. Specifically, the court (i) examines the July 1995, Essay 3
3 of 49 Exams
connections that each state has to the parties and the

05 CONFLICT OF LAWS
events of the litigation, (ii) analyzes the difference

between the state laws, (iii) pinpoints the underlying
policies behind those state laws, and (iv) then applies the
facts to the law to determine which state has a greater
interest in having its law applied.
• To determine which state has the greater interest, a three-
step process is used:
o Step 1: If the court finds that one state has an
interest in the application of its policy based on
the circumstances and the other state has none, it
should apply the law of only the interested state.
o Step 2: If the court finds an apparent conflict
between the interests of the two states, it should
reconsider to see if a more moderate and restrained
interpretation of the policy or interest of one state
may avoid the conflict.
o Step 3: If, upon reconsideration, the court finds
that a conflict between the legitimate interests of
the two states is unavoidable (a true conflict), it
should apply the law of the forum state.
• This approach DOES NOT change depending on the type
of action involved (i.e. contract, tort, property).
B. Application in Specific Areas

MEE TIP
■■ Choice of Law Rules: Torts
Apply the specific choice of law
• Under the traditional vested rights approach, the approach depending on the type
LOW applicable law is that of the place of the wrong of issue/case (contract, tort, real
property, etc.).
(i.e. where the injury occurred) for a tort action.
1 of 49 Exams
• Under the most significant relationship approach of the Feb 2009, Essay 5
Restatement (Second) Conflict of Laws, a court must
consider the following factors: (1) where the injury
occurred; (2) where the conduct causing the injury
occurred; (3) the domicile, residence, incorporation,
and place of business of the parties; AND (4) where the
relationship between the parties is centered. The laws of
the state having the most significant relationship to the
occurrence and the parties will govern the action. If it
is not clear which state has a more significant relationship
to the case, courts will focus on the policy interests of the
different laws (especially its own state policy interests
applicable to the case). Most courts will apply local state
law and further local policies unless there is a strong
reason not to do so.

05 CONFLICT OF LAWS
• Under the governmental interest analysis approach, the

court weighs the interests of the states involved, and then
applies the facts to the law to determine which state has a
greater interest in having its law applied.
■■ Choice of Law Rules: Contracts

MEE TIP
• Contractual Choice of Law Provision:
HIGH o Parties to a contract are free to choose a particular On the exam, apply the
appropriate contracts choice of
state’s law to be applied for matters of contract rule, depending on whether or
3 of 49 Exams
construction. not a contractual choice of law
o For matters of contract validity, the parties may provision governs the contractual
only choose which state’s law applies if: (1) the dispute.
state has some connection with the contract; (2)

the contract has not been entered into under July 2017, Essay 6
fraud, duress, or mistake; AND (3) the choice of July 1998, Essay 3
law isn’t contrary to a substantial policy interest July 1995, Essay 3
of another state that has more of a significant
interest in the matter.
• No Valid Choice of Law Provision: If a valid choice of
law provision is NOT applicable to a contract action,
then the choice of law must be analyzed under one of the
choice of law theories.
o Under the traditional vested rights approach, the
law where the contract (a) was formed, OR (b) is
to be performed applies.
o Under the most significant relationship
approach of the Restatement (Second) Conflict
of Laws, laws of the state having the most
significant relationship to the transaction and
parties will govern the action. A court must
consider the following factors: (1) the place of
contracting; (2) the place of negotiation of the
contract; (3) the place of performance; (4) the
location of the subject matter of the contract; and
(5) the domicile, residence, nationality, place
of incorporation, and place of business of the
parties. The factors are weighed according to their
relevance to the particular issue.
o Under the interest analysis approach, the court
weighs the interests of the states involved, and
then applies the facts to the law to determine
which state has a greater interest in having its
law applied.

05 CONFLICT OF LAWS
■■ Choice of Law Rules: Contractual Forum-Selection Clause

• Generally, a court will enforce a contractual forum- Feb 2012, Essay 7
MED selection clause to transfer venue UNLESS special July 2002, Essay 3
factors are present (i.e. significant/unusual hardships
2 of 49 Exams or inequality of bargaining power). Additionally, the
Supreme Court has held that a forum-selection clause
is an important factor favoring a change of venue, even
if the forum-selection clause is unenforceable under the
applicable state law.
■■ Choice of Law Rules: Premarital Agreements

• In determining the enforceability of a premarital July 2008, Essay 7
LOW agreement, states apply the law of either: (a) the state
where the agreement was executed; OR (b) the state
1 of 49 Exams
having the most significant relationship to the transaction
and the parties.
• Most states apply the Most Significant Relationship
Approach, where the laws of the state having the most
significant relationship to the transaction and parties
will govern. To determine the state with the most
significant relationship, the court will weigh the following
factors: (i) where the agreement was signed; (ii) where
the parties were married; (iii) where the parties lived
while married; (iv) where the parties are currently
living; (v) where the parties assets are located; and (vi)
where any children were born.
■■ Choice of Law Rules: Real Property Cases

• In cases involving the title to real property or a contract July 1998, Essay 3
LOW for the sale of real property, the laws of the state where
the real property is located will generally govern (known
1 of 49 Exams
as the situs rule), as states have a strong interest in actions
that affect real property located within their state.
o Under the Restatement (First) approach, the laws
of the state where the real property at issue is
located (the situs) will always govern.
o Under the Restatement (Second) approach, it is
presumed that the state where the property is
located has the most significant relationship to the
action, and that law will govern the action.
o Under the Interest Analysis approach, where the
real property at issue is located (the situs) will
generally govern, UNLESS another state has a
greater interest in having its law applied.

05 CONFLICT OF LAWS
• However, if real property is merely incidental to a

contract (i.e. real estate brokerage contracts, mortgage
agreements), then the conflict of laws rules for contracts
must be used to determine the applicable law.
■■ Choice of Law Rules: Inheritance of Real & Personal Property

• Inheritance of Real Property: Under the Restatement July 2012, Essay 9
MED (Second) of Conflict of Laws, the law of the state Feb 1998, Essay 3
where the real property is located (the situs) governs
2 of 49 Exams its disposition under intestacy or under a last will and
testament.
o In a will, a decedent may designate a particular
state’s law to be applied for matters of
construction, BUT the validity and effect of a
will is always determined by the law of the situs
state.
• Inheritance of Personal Property: The law of the
decedent’s domicile state at the time of death governs
the disposition of decedent’s personal property. Domicile
is determined by a person’s: (1) residence (physical
presence in the state); AND (2) subjective intent to make
the state their permanent home.
C. Law Applied by Federal & State Courts
■■Law Applied by Federal Courts: Erie Doctrine, Substance

vs. Procedure, & Supremacy Clause
• The Erie doctrine applies when a federal case is brought July 2017, Essay 6
HIGH under diversity of citizenship jurisdiction. Under the Erie Feb 2012, Essay 7
doctrine, a federal court sitting in diversity will apply Feb 2009, Essay 5
6 of 49 Exams
its own federal procedural laws, but must apply state July 1999, Essay 3
substantive law. Feb 1997, Essay 5
o Procedural laws include: civil procedure July 1995, Essay 3
rules, statute of limitations (except in limited
circumstances), burden of proof, and rebuttable
presumptions.
o Substantive laws include: choice of law rules,
statute of frauds, irrebuttable presumptions,
damages, statute of limitations that condition a
substantive right, and statute of limitations where
a borrowing statute was enacted (a statute stating
that the shorter of the two time periods applies).

05 CONFLICT OF LAWS
• Since choice of law rules are considered substantive

law, a federal court sitting in diversity MUST apply
the forum state’s choice of law rules to determine the
applicable substantive law in the action. Once the
applicable state law is determined, the federal court must
apply that law as the state court would; it cannot make its
own independent judgment on the construction of a law or
statute. When no controlling state case law is available to
the federal court for guidance, the court must predict how
the state’s highest court would rule on the issue.
• Federal law will apply for matters governed by the
U.S. Constitution, laws passed by Congress, or valid
federal law that preempts state law under the Supremacy
Clause.
■■ Law Applied by State Courts: Substance vs. Procedure

• A state court will apply the law of the forum state to Feb 1999, Essay 5
LOW procedural issues, which include: civil procedure rules,
statute of limitations (except in limited circumstances),
1 of 49 Exams
burden of proof, and rebuttable presumptions.
• For substantive issues, the choice of law rules of the
forum state determine which state’s substantive law is
applied. Substantive issues include: choice of law rules,
statute of frauds, irrebuttable presumptions, damages,
statute of limitations that condition a substantive right,
and statute of limitations where a borrowing statute was
enacted (a statute stating that the shorter of the two time
periods applies).
D. Recognition & Enforcement of Judgments
Full Faith and Credit: State, Federal, and Foreign Court

■■
Judgments
• State courts are required to give full faith and credit July 2004, Essay 6
LOW to judicial proceedings of every U.S. state, territory, or

possession (i.e. Puerto Rico, U.S. Virgin Islands). In
1 of 49 Exams
addition, state courts are required to give a federal
judgment the same force and effect as it would be given
under the preclusion rules of the state in which the federal
court is sitting.
• Federal courts are required to give a state-court judgment
the same preclusive effect as a state court is required to
give to another state court judgment.

05 CONFLICT OF LAWS
• A judgment is entitled to full faith and credit when: (1)

the rendering court had jurisdiction (both personal and
subject matter jurisdiction); (2) the case was decided on
the merits; AND (3) the judgment was final.
o Under the doctrine of comity, courts may, but
are not required, to give full faith and credit to
judgments from foreign countries.
• The Supreme Court has held that a judgment is entitled to
full faith and credit even as to questions of jurisdiction
when those questions were (1) fully and fairly litigated,
and (2) finally decided by the court which rendered the
original judgment.
■■ Full Faith and Credit: Ceremonial & Common Law Marriage

• The validity of a marriage will be determined by the law Feb 2017, Essay 3
HIGH of the state that has the most significant relationship to July 2011, Essay 6
the spouses. A marriage that is valid where formed July 2006, Essay 4
4 of 49 Exams
is valid everywhere, UNLESS it (1) violates the strong July 1995, Essay 5
public policy of another state that (2) has the most
significant relationship to the spouses and the marriage.
• Most states will honor a valid common law marriage
established in another state (even if not recognized within
the state). Once established, a common law marriage is
equivalent to a ceremonial marriage. However, a court
may refuse to honor a common law marriage when the
spouses and the marriage have limited contacts with the
state where the common law marriage was allegedly
established.
■■ Full Faith and Credit: Family Law Judgments

MEE TIP
• A divorce (whether ex parte or bilateral) validly
On the exam, apply the
HIGH granted in another state is entitled to full faith and appropriate family law full faith
credit in all other states. An ex parte divorce (a divorce and credit rule depending on
6 of 49 Exams
action where only one of the spouses is before the court) what type of judgment/order is at
issue (i.e. divorce, alimony, child
may be maintained without personal jurisdiction over the
support, child custody).
absentee spouse when the plaintiff-spouse is a domiciliary
of the rendering state. The plaintiff-spouse’s status as a July 2009, Essay 3
domiciliary gives the court subject matter jurisdiction over Feb 2005, Essay 4
the marriage itself (the marital res). Feb 2003, Essay 3
• In a matrimonial action involving economic or child
July 2001, Essay 5
custody/support issues (alimony, property distribution, Feb 2000, Essay 5
child support and custody) the court MUST have personal Feb 1996, Essay 3
jurisdiction over the defendant-spouse for the judgment
to be entitled to full faith and credit in other states.

05 CONFLICT OF LAWS
o Under the Parental Kidnapping Prevention Act

(PKPA), state courts MUST give full faith and
credit to child custody decrees of other state courts
when: (1) the issuing court had jurisdiction under
the laws of the State; AND (2) the assertion of
jurisdiction by that court was consistent with the
jurisdictional requirements of the PKPA. Most
states have adopted either the UCCJA or UCCJEA,
which has substantially similar requirements as the
PKPA.
o Under the Uniform Interstate Family Support
Act (UIFSA), state courts MUST give full faith
and credit and enforce child support awards of
other state courts when the issuing tribunal had
jurisdiction. The UIFSA has been adopted by
every state, and provides for registration of child
support orders. Once registered, other states must
recognize and enforce the order and cannot modify
it.

06 CONSTITUTIONAL LAW
A. Constitutional Limits on Federal Court Jurisdiction MEE TIP

■■ State Sovereign Immunity (11th Amendment) On the exam, the terms
“Constitution,” “constitutional,”
• The Eleventh Amendment prohibits a party from suing a and “unconstitutional” refer to
HIGH state or a state agency in federal court UNLESS: (a) the the federal U.S. Constitution
(unless otherwise indicated).
state explicitly consents to waive its Eleventh Amendment
2 of 24 Exams
protections; (b) the suit pertains to federal laws adopted July 2017, Essay 2
under Section 5 of the Fourteenth Amendment; (c) the July 2012, Essay 3
suit seeks only injunctive relief against a state official for
conduct that violates the Constitution or federal law; OR (d)
the suit seeks money damages from a state official.
• The Eleventh Amendment DOES NOT apply to: (a) local
governments (counties, cities, towns); (b) federal suits
brought by one state against another state; and (c) a suit by
the federal government against a state.
• The Supreme Court has held that Congress CANNOT
abrogate state sovereign immunity EXCEPT for
federal laws adopted under Section 5 of the Fourteenth
Amendment. To determine whether Congress validly
abrogated State immunity, two issues must be resolved: (1)
whether Congress unequivocally expressed its intent to
abrogate the immunity; AND (2) if it did, whether Congress
acted pursuant to a valid grant of constitutional authority.
B. Justiciability
■■ Standing
• Article III of the Constitution limits federal courts to deciding 0 exams
MED actual cases or controversies. As such, a plaintiff MUST
have standing to sue in federal court.
0 of 24 Exams • Standing exists when the plaintiff: (1) personally suffered
an injury in fact (the plaintiff has been injured or injury is
imminent); (2) the injury was caused by the defendant
(a reasonable connection is sufficient); AND (3) the injury
is redressable by a court order. The Supreme Court has MEE TIP
recognized an injury in fact where the plaintiff’s
constitutional or statutory rights have been violated. Apply any specific standing rules
• Standing & Injunctive Relief: When a plaintiff is seeking concerning injunction relief
or organizational/third-party/
injunctive or declaratory relief, he must show that there is taxpayer standing, depending
a concrete, imminent threat of future injury that is neither on the fact pattern of the essay
conjectural nor speculative. question – i.e. whether plaintiff
is an organization, third-party,
taxpayer, or is seeking injunctive
relief.

• Organizational & Third-Party Standing:

o Generally, third-party standing is NOT
permitted. However, an exception is made when: (a)
there is a close relationship between the plaintiff
and the third-party (i.e. doctor/patient); (b) it would
be difficult or unlikely for the third-party to assert
their rights on their own; OR (c) the third-party is an
organization.
o An organization has standing to sue on behalf of its
members if: (a) the suit is related to an issue that
is germane to the organization’s purpose; (b) the
organization’s members would have standing to
sue (injury in fact to the members); AND (c) the
members’ participation is not necessary.
• Taxpayer Standing: A plaintiff may always bring a
suit regarding the specific amounts owed under their tax
bill. BUT, a plaintiff DOES NOT have standing to sue
solely based on being a taxpayer, except in the following
instance: When the taxpayer is challenging government
expenditures in violation of the Establishment Clause of the
Constitution.
■■ Advisory Opinions, Ripeness, & Mootness

• Article III of the Constitution limits federal courts to deciding
MED actual cases or controversies. As such, a court CANNOT MEE TIP
give advisory opinions or address hypothetical disputes.
If the essay involves a case not
0 of 24 Exams • Ripeness refers to whether the case is ready to be litigated.
being ready for review (i.e. no
A case is ripe for review by a court when there is actual injury or immediate threat of
harm or an immediate threat of harm to the plaintiff. injury), then apply the Ripeness
o A court may grant pre-enforcement review of a statute rule. If the fact pattern involves
a case where the dispute has
or law after considering: (1) the hardship of the ended or resolved, then apply the
parties if the court withholds review; AND (2) the Mootness rule.
fitness of the record for review.
• Mootness refers to instances when the dispute has ended or 0 exams
was resolved before review. However, a court may hear a
case that has ended or was resolved when: (a) the wrong
alleged is capable of being repeated and escaping review;
(b) the defendant voluntarily stops an offending practice,
but can resume it at any time; OR (c) in a class action,
where at least one member of the class has an ongoing injury.

C. Powers of Congress
■■ Commerce Clause
• The Commerce Clause of the Constitution grants Congress the July 2012, Essay 3
MED authority to regulate commerce between the States (interstate
commerce), foreign nations, and Indian tribes. Congress
1 of 24 Exams may regulate: (1) the channels of interstate commerce
(i.e. highways and phone lines); (2) the people and
instrumentalities that work and travel in interstate commerce
(i.e. cars, airplanes, airplane pilots, flight attendants); AND
(3) economic or commercial activities that have a substantial
effect on interstate commerce.
• Federal regulations regarding intrastate activities will be
upheld if (1) there is a rational basis, (2) to conclude that the
cumulative national impact of the activities (aggregation),
(3) have a substantial effect on interstate commerce.
o However, aggregation CANNOT be used when the
activities regulated are NOT commercial or economic
in nature, thus making the substantial effect standard
difficult to meet. The Supreme Court has held that
the following activities DO NOT have a substantial
economic effect: possessing a firearm in a school
zone; and general acts of violence.
■■ Power to Enforce the 13th, 14th, and 15th Amendments

• Congress has the power to enforce the provisions of the Feb 2015, Essay 2
MED following Amendments through appropriate legislation: 13th
Amendment (abolition of slavery); 14th Amendment
1 of 24 Exams (privileges and immunities, due process, equal protection,
apportionment of representatives); and 15th Amendment
(right to vote cannot be denied because of race).
• Legislation which deters/remedies a constitutional violation
under these Amendments is within Congress’s enforcement
power even if in the process it prohibits conduct which
is not unconstitutional. However, Congress may only
prohibit behavior that is likely to involve a constitutional
violation. Congress CANNOT define constitutional rights
or change substantive law. There must be congruence
and proportionality between the constitutional injury to be
prevented or remedied, and the legislative means that are
adopted by Congress.

■■ Taxing Power
• Congress has the power to lay and collect taxes, duties, 0 exams
MED imposts and excises. All duties, imposts, and excises MUST
be geographically uniform throughout the United States.
0 of 24 Exams • Under the 16th Amendment, Congress has the power
to collect taxes on income that are derived from any
source. Congress may also prescribe what shall be taxed and
the application of a uniform percentage when computing the
tax.
■■ Spending Power
• Congress has the power to spend for the common defense July 2018, Essay 1
MED and general welfare of the United States. This power is
interpreted broadly and allows Congress to attach conditions
1 of 24 Exams on States receiving federal funds upon compliance with
federal statutory and administrative directives (essentially
allowing Congress to regulate areas even when it wouldn’t
otherwise have the power to do so).
• However, the spending power is NOT unlimited. Congress
must satisfy five restrictions when placing conditions on
States receiving federal funds: (1) the spending must be for
the general welfare – but courts should defer substantially to
the judgment of Congress; (2) the condition must be imposed
unambiguously, enabling the States to exercise their choice
knowingly; (3) the condition must be related to the federal
interest in particular national projects or programs; (4)
the condition cannot induce activities that would be
unconstitutional for the States to engage in themselves;
AND (5) the condition cannot be so coercive as to turn
pressure into compulsion – compulsion is when States have
no real option but to acquiesce (i.e. where threatened funding
was over 10% of State budgets).
D. Powers of the President
■■ Executive Powers: Domestic Powers

• The President has the power to: (1) faithfully execute the 0 exams
MED law (under the “take care” clause) as Chief Executive of the
United States; (2) appoint ambassadors, public ministers,
0 of 24 Exams consuls, Supreme Court judges, federal court judges, and
other officers of the United States (with Senate advice and
consent); (3) appoint inferior officers when such power is
given to the President by Congress (note: while Congress
itself cannot exercise the power to make appointments, they

may vest this power in other branches); (4) remove cabinet

level appointees (without cause) and independent regulatory
agency appointees (without cause unless Congress passes
a law requiring good cause); (5) pardon federal crimes
(except for crimes that lead to impeachment by the House of
Representatives); AND (6) act as Commander in Chief of the
military (the power to control troops).
■■ Executive Powers: Treaty and Foreign Affairs Powers

• The President shares treaty powers with Congress. Treaties 0 exams
MED may be negotiated by the President, but must be ratified by a
two-thirds vote of the Senate. However, the President may
0 of 24 Exams enter into Executive Agreements (agreements between the
President and a head of a foreign country) without Senate
approval.
• The President has broad power to control and deploy
U.S. troops in foreign countries.
E. Federal Interbranch Relationships
■■ Delegation of Congressional Powers & Non-Delegation Doctrine

• Congress has broad authority to delegate legislative powers so 0 exams
MED long as: (1) the powers are delegable under the Constitution
(Congress cannot delegate the power to impeach or declare
0 of 24 Exams war); AND (2) Congress provides reasonably intelligible
standards to guide the delegation. Congress can delegate its
powers to the Executive or Judicial branches of the federal
government.
• Under the Non-Delegation Doctrine, Congress CANNOT
delegate powers it does not have (i.e. executive or judicial
powers) to itself or its officers.
F. Intergovernmental Immunities
■■ State Immunity from Federal Law (10th Amendment)

• Under the 10th Amendment, all powers NOT granted to the July 2018, Essay 1
HIGH Federal government are reserved to the States (unless such July 2012, Essay 3
powers are expressly prohibited by the Constitution).
2 of 24 Exams
• Congress CANNOT compel state governments to implement
legislation, BUT Congress may induce state government
action by attaching restrictions and conditions on federal
funding grants pursuant to its federal taxing and spending
powers (Congress has the broad power to tax and spend for
the general welfare).

• The Supreme Court has held that the Federal Government

may regulate state activities on the same terms as private
actors so long as it does not seek to control or influence
(commandeering) the manner in which States regulate private
parties. A federal regulation CANNOT require the States
in their sovereign capacity to regulate their own citizens,
require the state legislature to enact any laws or regulations,
or require state officials to assist in the enforcement of federal
statutes regulating private individuals. A federal mandate
requiring state personnel to alter their own activities is not an
unconstitutional commandeering.
G. Federalism-Based Limits on State Authority
■■ Negative Commerce Clause

• A state or local government may regulate intrastate July 2017, Essay 2
HIGH commerce, as long as Congress has not enacted laws on the Feb 2016, Essay 4
subject matter. If Congress has enacted laws on a particular
2 of 24 Exams
matter, any state or local laws would be pre-empted by federal
law.
• Notwithstanding the above, state and local governments
generally CANNOT pass laws that: (a) discriminate against
out-of-state commerce; OR (b) place an undue burden on
interstate commerce.
o Discriminatory Regulations: A law is deemed
discriminatory when it is either (a) facially
discriminatory, OR (b) the law has a discriminatory
impact because it favors in-state commerce over
out-of-state commerce. State and local laws that
discriminate against out-of-state commerce are
UNCONSTITUTIONAL, UNLESS: (a) the burden
on interstate commerce is narrowly tailored to
achieve a legitimate, non-protectionist state objective
(there are no less-discriminatory alternatives
available); OR (b) the state or local government
is a “market participant” rather than a regulator
of economic activity (a state may favor its own
citizens regarding state programs, state businesses,
or when it is the entity buying or selling goods). The
Supreme Court has held that states CANNOT use
discriminatory means to accomplish even a legitimate
environmental purpose (i.e. prohibiting the disposal
of out-of-state waste in-state).

o Unduly Burdensome Regulations: State and

local laws that are not discriminatory, but still place
an undue burden on interstate commerce are
UNCONSTITUTIONAL when (1) the burden on
interstate commerce, (2) is clearly excessive to the
putative benefits to the state/local government.
■■ Supremacy Clause & Preemption

• Under the Supremacy Clause of the U.S. Constitution, 0 exams
MED validly enacted federal law will always trump (preempt)
conflicting state law. State law may be preempted either
0 of 24 Exams expressly or impliedly.
• Express preemption occurs when federal legislation
specifically states that the federal law is exclusive. Implied
preemption occurs through: (a) direct conflict with state
law; (b) field preemption (when it appears from the law itself
or its legislative history that the federal government intended
to exclusively occupy a given field); OR (c) when the state
law substantially interferes with the objective of the federal
law.
H. Governmental Action
■■ Governmental Action (“State Action”)

• When alleging a constitutional violation, a plaintiff MUST Feb 2013, Essay 3
HIGH show that the violation is attributable to government action July 2011, Essay 8
(also known as “state action”), which applies to ALL
2 of 24 Exams
levels of local, state, and federal government. Generally,
the conduct of private individuals or entities DO NOT
constitute state action and is NOT protected by the
U.S. Constitution. The Supreme Court has held that running
a private school or college is not “state action,” even when
said school is funded primarily by government funds.
• Courts will find “state action” for private conduct when
the conduct involves either: (a) a traditional public
function – powers traditionally and exclusively reserved
to the government; OR (b) when significant government
involvement exists to authorize, encourage, or facilitate
private conduct that is unconstitutional (i.e. government
enforcement of certain private contracts, entanglement or joint
action between a state and private actor, and encouragement
of private discrimination). Examples of a traditional “public
function” include holding elections and where a corporation
operates a privately owned “company town” that provides
typical services of the government.

I. Due Process (5th & 14th Amendments) MEE TIP

■■ Substantive Due Process State the general rule concerning
the government’s power to
• Substantive Due Process pertains to the government’s regulate certain activities for
MED power to regulate certain activities under the Due Process a Substantive Due Process
question, and then apply either
Clause of the 14th Amendment (applicable to the states) and the Fundamental Rights Test
0 of 24 Exams the 5th Amendment (applicable to the federal government). or Non-Fundamental Rights
• Fundamental Rights Test: When the government attempts Test depending on the activity
to regulate fundamental rights, it must satisfy strict scrutiny regulated.
(the government must show that the law is necessary to

0 exams
serve a compelling government interest).
o Fundamental rights include: (1) the right to vote;
(2) the right to interstate travel; and (3) the right
to privacy, which encompasses the right to marry,
procreate, use contraceptives, raise one’s children,
keep the family together, and maintain custody over
one’s children (but a State can create a rebuttable
presumption that a married woman’s husband is the
father of a child born during wedlock).
• Non-Fundamental Rights Test: The government may
regulate activities that DO NOT constitute fundamental rights
so long as it meets the rational basis test (plaintiff must
show that the law is not rationally related to a legitimate
government interest).
■■ Procedural Due Process

• The Due Process Clause of the 14th Amendment (applicable 0 exams
MED to the States) and the 5th Amendment (applicable to the
federal government) guarantees that no person shall
0 of 24 Exams be denied life, liberty, or property without due process
of law. Thus, certain procedures are required when the
government deprives an individual of such rights.
o Deprivation of liberty occurs when the government
deprives an individual of a freedom provided by the
Constitution or statute.
o Deprivation of property occurs when an individual
has an entitlement that is not fulfilled (i.e. welfare or
social security benefits).
• In analyzing a procedural due process claim, the court first
determines whether a person’s life, liberty, or property
has been taken from her. Then, the court determines what
process, if any, was due before or after depriving such rights.

o To determine what procedures are required, the

court will balance the three Matthews v. Eldridge
factors: (1) the importance of the private interests
being affected; (2) the risk of error under
current procedures and the value of additional
procedures; AND (3) the importance of state interests
and the burdens on the government that would arise
from the additional safeguards. Normally, procedural
due process requires notice and an unbiased hearing.
J. Equal Protection (5th & 14th Amendments)
■■ Equal Protection Analysis

• The Equal Protection Clause of the 14th Amendment Feb 2015, Essay 2
HIGH (applicable to the States) and the 5th Amendment (applicable July 2011, Essay 8
to the federal government) prohibits the government from
2 of 24 Exams
denying citizens equal protection of the laws.
• To determine if a discriminatory classification against a group
of people exists, one of the following must be shown: (a)
MEE TIP
the law is discriminatory on its face; (b) the law is facially On the exam, determine the
neutral, but is applied in a discriminatory manner; OR (c) applicable level of scrutiny
depending on the classification,
a discriminatory motive, when the law is facially neutral but and then state and apply the
creates a disparate impact. applicable rule (strict scrutiny,
• When the government makes laws that classify people into intermediate scrutiny, or rational
groups, the constitutionality of the law will be considered basis).
using one of three different levels of scrutiny: (a) Rational

Basis; (b) Intermediate Scrutiny; OR (c) Strict Scrutiny.
o Strict Scrutiny: The court will apply strict scrutiny
when: (a) a classification is based on a suspect
class (race, national origin, or alienage in some
instances); OR (b) when the law infringes on a
fundamental right for a class of people (i.e. right to
vote, exercise of religion, have access to the courts,
and interstate travel). Alienage (legal non-citizen
status) is generally a suspect class only when a State
is involved (as Congress has power over aliens under
the Constitution). A State may limit a non-citizen’s
participation in a function of the government, which is
subject to rational basis review.
 Under strict scrutiny, the government must
show that the classification is necessary to
serve a compelling government interest.
o Intermediate Scrutiny: When a classification is
based on a quasi-suspect class (gender, non-marital
children), the court will apply intermediate scrutiny.

 Under intermediate scrutiny, the government

must show that the classification is
substantially related to an important
government interest (the interest MUST be
the government’s actual interest in passing
the law).
 The Supreme Court has held that a State may
treat men and women differently and provide
separate facilities (bathroom facilities,
separate sports teams), BUT the State must
demonstrate: (1) an exceedingly persuasive
justification for separate treatment; AND
(2) that the facilities are substantially
equivalent. In addition, a State can use a
compensatory purpose to justify an otherwise
discriminatory classification but only if
members of the gender benefited by the
classification actually suffer a disadvantage
related to it.
o Rational Basis: For all other classes (age, disability,
wealth, undocumented aliens), the court will apply the
rational basis test.
 Under rational basis, the plaintiff must show
that the classification is NOT rationally
related to any legitimate government interest
(any conceivable interest is sufficient, even
if it is not the government’s actual interest in
passing the law).
K. Takings (5th Amendment)
■■ Takings (5th Amendment)

• Under the Takings Clause of the 5th Amendment, the Feb 2014, Essay 1
MED government may take private property for public use if it
provides just compensation.
1 of 24 Exams o A taking is deemed for public use as long as there is a
reasonable belief that it will benefit the public.
o Just compensation is measured by the fair market
value of the property to the owner AT THE TIME
OF the taking (relocation/moving costs are not
included).
• Two types of takings exist:
• Possessory (per se) takings occur when the government
physically takes or occupies the property, even if it’s just a
small portion of the property.

• Regulatory takings occur when the regulation (i.e. zoning

ordinance) leaves no economically viable use of the
property. Courts will determine whether a regulatory taking
occurred by balancing private and community interests under
the three Penn Central factors: (1) the economic impact of
the regulation on the claimant; (2) the extent of interference
with distinct investment-backed expectations (the owner’s
primary expectation of use for the property); AND (3) the
character of the governmental action.
o The Supreme Court in Penn Central recognized that
the government may execute laws and programs that
adversely affect recognized economic values in a
wide variety of contexts. The Court has upheld land-
use regulations (i.e. zoning laws) that destroyed or
adversely affected recognized real property interests
in instances where the government reasonably
concluded that the health, safety, morals, or general
welfare would be promoted by prohibiting particular
contemplated uses of land.
• Takings & Conditions on Approval of Permits: Conditions
placed on the approval of permits DO NOT constitute an
uncompensated taking under the 5th Amendment if: (1) there
is an essential nexus between the state interest and the permit
condition; AND (2) the government makes an individualized
determination that the condition is roughly proportional (in
nature and extent) to advancing that state interest.
o The Supreme Court has found the required nexus
between a conditioned easement (bike path) and a
city’s attempt to reduce traffic congestion by providing
for alternative means for transportation.
L. Other Protections
■■ Privileges and Immunities Clause

• Under the Privileges and Immunities Clause of the 14th 0 exams
MED Amendment, States may not intentionally discriminate
against non-residents concerning: (a) civil liberties (right to
0 of 24 Exams vote, right to travel interstate); OR (b) important economic
activities (ability to earn a livelihood).
• HOWEVER, laws that discriminate against non-residents will
be upheld if the State is justified for the discrimination –
when: (1) there is a substantial reason for the difference in
treatment; AND (2) the discriminatory law has a substantial
relationship to that reason.
• The Privileges and Immunities Clause DOES NOT protect
aliens or corporations from discrimination.

M. Freedom of Religion
■■ Freedom of Religion: Establishment Clause

• The Establishment Clause in the 1st Amendment is 0 exams
MED applicable to the federal government, as well as States
and local governments (through incorporation in the 14th
0 of 24 Exams Amendment). The Establishment Clause prohibits the
government from establishing a religion or endorsing/
supporting religion.
• Laws that discriminate against a religion MUST satisfy strict
scrutiny (the government must show that the law is narrowly
tailored to achieve a compelling government interest, and
that the least restrictive means was used).
• Under the Lemon test, a law that has some relationship to
religion but that DOES NOT discriminate against religion
will be upheld if: (1) it has a secular purpose; (2) its primary
effect does not advance or inhibit religion (incidental effects
are allowed); AND (3) it does not excessively entangle the
government with religion.
■■ Freedom of Religion: Free Exercise Clause

• The Free Exercise Clause in the 1st Amendment is 0 exams
MED applicable to the federal government, as well as States
and local governments (through incorporation in the 14th
0 of 24 Exams Amendment). The Free Exercise Clause prohibits the
government from interfering with the exercise of religion.
• Laws designed to interfere with religion must meet strict
scrutiny (the government must show that the law is narrowly
tailored to achieve a compelling government interest, and
that the least restrictive means was used). Religious beliefs
are protected if they are genuine, sincere, and hold a place in
one’s life similar to a traditional religion.
• HOWEVER, laws of general applicability that cause
unintentional burdens on religion ARE CONSTITUTIONAL
and do not offend the Free Exercise Clause (i.e. prohibiting
illegal drug use or human/animal sacrifice).

N. Freedom of Speech
MEE TIP
Checklist of When to Use Each Freedom of Speech Rule

To best prepare you for an essay question we have put together a checklist of
when to apply certain Free Speech rules on the MEE. Note, we wanted each rule
to be complete and free standing when applying the same to an essay question, so
you may see some repetitive statements in each rule as many of the freedom of
speech concepts are interrelated.
Issue # 1: Is the class of speech unprotected or subject to limited protection?
o See the following rules:
 Unprotected Speech: Obscenity
 Unprotected Speech: Incitement of Imminent Lawless Action
 Unprotected Speech: Fighting Words
 Freedom of Speech: Regulation of Commercial Speech
Issue # 2: Is the government regulating speech generally or regulating
speech in a public space?
oo See the following rules:
Freedom of Speech: Content-Based vs. Content-Neutral
Restrictions
Freedom of Speech: Regulation of Expressive Conduct
Freedom of Speech: Vague & Overbroad Laws
Freedom of Speech: Public Forum, Limited Public Forum, &
Non-Public Forum
oo When to use each rule:
If the regulation DOES NOT involve restricting speech in
a public space (public forum, limited public forum, non-
public forum), then apply the general rule of “Freedom of
Speech: Content-Based vs. Content-Neutral Restrictions”.
If the regulation DOES involve restricting speech in a public
space, then apply the “Freedom of Speech: Public Forum,
Limited Public Forum, & Non-Public Forum” rule.
If the regulation regulates expressive conduct, then apply the
“Freedom of Speech: Regulation of Expressive Conduct” rule.
If a law restricts protected speech, apply the “Freedom of
Speech: Vague & Overbroad Laws” rule.
Issue # 3: Is a regulation/law stopping speech before it occurs (a prior
restraint)?
Freedom of Speech: Prior Restraint
Issue # 4: Does the fact pattern involve public school students or
government employees?
Freedom of Speech: Public School Students
Freedom of Speech: Government Employees

Freedom of Speech: Content-Based vs. Content-Neutral

■■
Restrictions
• The 1st Amendment protects the right to freedom of 0 exams
MED speech and expressive activities that constitute speech,

and is applicable to the federal government and state/
0 of 24 Exams
local governments (by incorporation through the 14th
Amendment). The right to anonymous speech and the
right not to speak is included within the 1st Amendment
protections. However, conduct that has no communicative
value DOES NOT fall within the protection of the 1st
Amendment, and thus can be regulated.
• Content-Based Restrictions: Government regulations
regarding the content of protected speech (subject matter or
viewpoint) must satisfy strict scrutiny.
o Under strict scrutiny, the government must show:
(1) that the regulation is narrowly tailored to achieve
a compelling government interest; AND (2) it used
the least restrictive means to accomplish its purpose.
• Content-Neutral Restrictions: Generally, the government
MAY regulate the time, place, and manner of content-neutral
speech if the regulation satisfies intermediate scrutiny.
o Under intermediate scrutiny, the government
must show that the regulation: (1) is narrowly
tailored to achieve a significant government
interest; AND (2) leaves open alternative channels of
communication. The regulation DOES NOT need to
be the least restrictive means.
■■Freedom of Speech: Public Forum, Limited Public Forum, &

Non-Public Forum
• The 1st Amendment protects the right to freedom of
HIGH speech and expressive activities that constitute speech, MEE TIP
and is applicable to both state/local governments (by Depending on the essay
2 of 24 Exams
incorporation through the 14th Amendment) and the federal question, apply the rule(s) for the
government. However, conduct that has no communicative type of forum at issue.
value (i.e. trespass) DOES NOT fall within the protection

of the 1st Amendment, and thus can be regulated by the Feb 2013, Essay 3
government. July 2010, Essay 4
• The conduct of speech and assembly in public spaces CAN be
regulated by the government in certain instances depending
on the type of forum.
• A public forum is one that has traditionally been available
to the public for free speech (i.e. public sidewalks, parks, and
streets).

o Content-Based Restrictions: The government

CANNOT regulate speech in public forums based on
content UNLESS it satisfies strict scrutiny.
 Under strict scrutiny, the government must
show: (1) that the regulation is narrowly
tailored to achieve a compelling government
interest; AND (2) it used the least restrictive
means to accomplish its purpose.
o Content-Neutral Restrictions: However, the
government MAY regulate the time, place, and
manner of content-neutral speech in public forums if
the regulation satisfies intermediate scrutiny.
 Under intermediate scrutiny, the government
must show the regulation: (1) is narrowly
tailored to achieve a significant government
interest; AND (2) leaves open alternative
channels of communication. The regulation
DOES NOT need to be the least restrictive
means.
o The Supreme Court has held that a government
interest in keeping streets clean and of good
appearance is insufficient when striking down an
anti-leafletting ordinance that restricted speech. Thus,
anti-littering laws that suppress speech are likely
unconstitutional.
• A limited public forum (a/k/a designated public forum) is
one that has not traditionally been available to the public
for free speech, but that the government chooses to make
available (i.e. where a school makes classrooms available
for club meetings). Limited public forums are treated the
same as public forums.
• Non-public forums are other public places that have
traditionally been limited for free speech (i.e. schools,
military bases, and airports). The government may regulate
speech in non-public forums if the regulation is: (1)
reasonable; AND (2) viewpoint neutral.
• Private property: Generally, a person DOES NOT have the
right to access another’s private property (i.e. a shopping
center) to deliver the speech or expressive conduct. MEE TIP
• Religious Speech & Public Forums: Apply the Religious Speech &
o If a school opens itself as a limited public forum, then it Public Forums rule if the fact
CANNOT deny access based upon the religious content pattern concerns limiting religious
speech in a public forum.
of speech (i.e. a religious club). The Supreme Court has
held that in a public forum, religious speech is treated
equal to non-religious speech, and content-neutral access
rules do not violate the Establishment Clause.

• Licensing Requirements: MEE TIP

o Licensing requirements are permitted if: (1)
the government has an important reason for Apply the Licensing Requirements
licensing; (2) specific, articulated standards are rule if the essay concerns
licensing requirements (or similar
used to grant the licenses to remove discretion of the restrictions) that limit free speech
licensing body; AND (3) procedural safeguards are in public spaces.
in place, including assuring a prompt final judicial
decision when a license is denied.
■■ Unprotected Speech: Fighting Words

• The freedom of speech is protected by the 1st Amendment of July 2009, Essay 2
MED the U.S. Constitution. However, certain categories of speech
are afforded NO protection under the Constitution. The
1 of 24 Exams 1st Amendment DOES NOT protect fighting words or
true threats. Fighting words are words, which by their
very utterance: (a) inflict injury; OR (b) tend to incite an
immediate breach of the peace. Thus, such words must be
likely to cause a violent reaction from others.
• A defendant CANNOT be convicted under a law that is
deemed overbroad or vague (where the law applies to
constitutionally protected speech), even if the speech falls
within an unprotected category. Laws that punish merely
offensive, rude, annoying, or abusive speech have been
deemed UNCONSTITUTIONAL as overbroad or vague
because such laws reach protected speech. Commentary on
matters of public concern are afforded greater 1st Amendment
protection, and even extend to vehement, caustic, and
unpleasant sharp attacks on government and public officials.
■■ Unprotected Speech: Incitement of Imminent Lawless Action

• The freedom of speech is protected by the 1st Amendment of July 2009, Essay 2
are afforded NO protection under the Constitution.
1 of 24 Exams • Speech which incites imminent lawless action is one type
of unprotected speech. Such speech may be outlawed if
the speech: (1) advocates the use of force or illegality; (2)
directed to inciting or producing imminent lawless action
(intent); AND (3) likely to incite or produce such action
(there is a clear and present danger that the person listening
will act on the speech).

• A defendant CANNOT be convicted under a law that is

deemed overbroad or vague (where the law applies to
constitutionally protected speech), even if the speech falls
within an unprotected category. Where a court has previously
deemed a law applicable to only unprotected speech
(i.e. imminent lawless action), then overbreadth/vagueness
will not bar a conviction.
■■ Unprotected Speech: Obscenity

• The freedom of speech is protected by the 1st Amendment of 0 exams
are afforded NO protection under the Constitution.
0 of 24 Exams • Obscenity is NOT protected under the 1st Amendment,
and therefore may be regulated. Material is obscene
when: (1) it appeals to the prurient interest (i.e. sexual
interest) of an average person applying today’s community
standards; (2) it is patently offensive under the law
prohibiting obscenity; AND (3) it lacks any serious artistic,
literary, or scientific value based on a national standard.
• The mere private possession of obscene material (except for
child pornography) by an adult inside the home CANNOT be
made criminal.
■■ Freedom of Speech: Regulation of Commercial Speech

• The freedom of speech is protected by the 1st Amendment 0 exams
MED of the U.S. Constitution, as applied to the States through
the 14th Amendment. However, commercial speech
0 of 24 Exams (i.e. advertisements) is given fewer protections under the 1st
Amendment.
• The government MAY regulate truthful, non-misleading
commercial speech if the regulation: (1) directly
advances; (2) a substantial government interest; AND (3) it
is no more extensive than necessary (reasonably tailored) to
serve that interest.
• False or misleading commercial speech is NOT
protected. The government may also prohibit professionals
from advertising or practicing under a trade name.
■■ Freedom of Speech: Public School Students

• The Supreme Court has held that public school students DO Feb 2013, Essay 3
MED NOT lose their 1st Amendment rights to freedom of speech
when they step onto school property, BUT schools are given
1 of 24 Exams a greater latitude to regulate speech by a student or teacher.

• In order to justify the suppression of speech, school officials

MUST prove that the conduct in question would materially
and substantially interfere with the operation of the
school. However, in certain instances the Supreme Court has
held the above test is not applicable. For instance, a student’s
right to free speech DOES NOT extend to pro-drug messages.
• Schools CANNOT force students to participate in a flag
salute when it offends religious/political beliefs, and any
punishment for failing to participate violates the 1st and 14th
Amendments.
■■ Freedom of Speech: Government Employees

• For a government employee’s speech to be constitutionally 0 exams
MED protected under the 1st Amendment, an employee must have
spoken: (1) as a citizen; AND (2) on a matter of public
0 of 24 Exams concern. An employee’s statements made pursuant to their
official duties are NOT protected.
• The Supreme Court has set forth a two-step inquiry to
determine whether the speech of a government employee is
constitutionally protected under the 1st Amendment:
o Step 1: Did the employee speak as a citizen on a
matter of public concern? If the answer is no, the
employee has no 1st Amendment claim based on her
employer’s reaction to the speech. If the answer is
yes, then the possibility of a 1st Amendment claim
arises.
o Step 2: If the possibility of a 1st Amendment claim
arises, then the question becomes whether the relevant
government entity had an adequate justification
for treating the employee differently from any
other member of the general public based on the
government’s interests as an employer.
• As to the “citizen” requirement, the Supreme Court has held
that when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens
for 1st Amendment purposes, and the Constitution does not
insulate their communications from employer discipline. To
fall within the realm of “public concern” an employee’s
speech must relate to any matter of political, social, or other
concern to the community.

■■ Freedom of Speech: Regulation of Expressive Conduct

• Expressive conduct or symbolic speech (the expression 0 exams
MED of ideas through actions) may be regulated if: (1) the
government has an important purpose; (2) the purpose is
0 of 24 Exams independent of the suppression of speech; AND (3) the
restriction is no greater than necessary to achieve that
purpose.
■■ Freedom of Speech: Prior Restraint

• Prior restraints on speech occur when the government 0 exams
MED attempts to prohibit speech before it happens through a court
order or licensing requirement. Prior restraints are generally
0 of 24 Exams disfavored and unconstitutional, except in extremely limited
circumstances (i.e. when national security is at stake). Court
Orders preventing speech must satisfy strict scrutiny
(compelling governmental interest, narrowly tailored, and
least restrictive means).
• Procedural Safeguards for Licensing are permitted if: (1)
the government has an important reason for licensing; (2)
specific, articulated standards are used to grant the licenses
to remove discretion of the licensing body; AND (3)
procedural safeguards are in place, including assuring
prompt final judicial decision when a license is denied.
■■ Freedom of Speech: Vague & Overbroad Laws

• Laws that are unduly vague or overbroad are July 2009, Essay 2
MED UNCONSTITUTIONAL because they apply to
constitutionally protected speech. A statute is unduly vague Vagueness/
overbreadth was
1 of 24 Exams if it does not put the public on reasonable notice as to what is a minor topic
prohibited. A statute is overbroad if it regulates more speech tested in the July
2009 MEE (Essay
than is constitutionally permitted. 2) which primarily
• A defendant CANNOT be convicted under a law that is tested incitement
of imminent lawless
deemed overbroad or vague (where the law applies to action (in Point One)
constitutionally protected speech), even if the speech falls and fighting words (in
within an unprotected category. However, where a court Point Two).
has previously deemed a law applicable to only unprotected

speech (i.e. imminent lawless action, fighting words), then
any alleged overbreadth/vagueness will NOT bar a conviction.

O. Freedom of the Press
■■ Freedom of the Press: Defamation & Actual Malice Standard MEE TIP
• The elements required to prove a prima facie case of If an essay question involves
MED defamation are (1) a false defamatory statement (a 1st Amendment implications
concerning defamation, apply
statement that tends to harm the reputation of another), the applicable rule depending
1 of 24 Exams (2) of and concerning the plaintiff made by the defendant, on the type of person involved
(3) publication by the defendant to a third party, AND (i.e. public or private figure).
(4) damages.
• If the plaintiff is a public official or public figure (a person July 2008, Essay 2
who injected themselves into a public controversy or having

achieved widespread notoriety), then there is a heightened
standard to prove defamation. This requires the plaintiff to
prove actual malice: that the defendant spoke with either
(a) recklessness as to the truth of the statement, or (b) with
knowledge of its falsity. Proof of negligence is insufficient.
• Private citizens are allowed more protection from defamatory
statements than individuals in the public eye. If the plaintiff is
a private figure speaking about a matter of public concern,
the plaintiff must also prove that the speaker was negligent.
■■Freedom of the Press: Disclosure of Private Facts & Generally

Applicable Laws
• The 1st Amendment (as applied to state/local governments July 2008, Essay 2
MED through the 14th Amendment) protects the press from

liability when publishing: (1) truthful private facts; (2)
1 of 24 Exams
on a matter of public concern; (3) where such information
is legally obtained; AND (4) there is no knowledge that
any information was obtained illegally (if illegally obtained
information was published). A photo taken in a public place
is likely NOT a private fact.
• The 1st Amendment DOES NOT protect the press from
liability for violating generally applicable laws (not aimed at
suppression of free speech), even if such laws indirectly affect
the ability to gather and report news on a matter of public
concern.

P. Freedom of Association
■■ Freedom of Association
• The Supreme Court has held that the freedom of association is 0 exams
MED a fundamental right under the 1st Amendment (as applied to
state/local governments through the 14th Amendment). Thus,
0 of 24 Exams the government may only regulate the right to freely associate
in a group (including the group’s expressive activities or
compel disclosure of group membership) if it satisfies strict
scrutiny: The government must show that the regulation
is (1) necessary to achieve a compelling government
interest; AND (2) that the least restrictive means was used).
• The government MAY punish a person’s membership in
a group if it proves that: (1) the group is actively engaged
in illegal activity or incites imminent lawless action; (2) the
person has knowledge of the group’s illegal activities; AND
(3) the person has the specific intent of furthering those illegal
activities.

07 CONTRACTS
UCC = Uniform Commercial Code
MEE TIP
Normally, the bar examiners do not test all four elements of a contract
at the same time, and instead focus the question on a specific element of
contract formation (i.e. mutual assent or consideration). In one instance,
the examiner’s model answer included the contract elements as a one-
liner (see July 2010, Essay 2, Point One). Notwithstanding, you must
know and keep in mind the contract formation elements when working
through an essay question.
Requirements to Form a Valid Contract

A valid contract is formed when there is: (1) mutual assent (an offer and
acceptance of that offer by the other party); (2) adequate consideration
or a substitute; AND (3) no defenses to formation that would invalidate
an otherwise valid contract entered into by the parties.
MEE TIP
Apply Art. 2 of the UCC for all sales of goods contracts, and the common
law for all other types of contracts (i.e. service or construction contracts).
Applicable Law
Article 2 of the Uniform Commercial Code (UCC) governs all contracts
for the sale of goods. The Common Law governs all other contracts.
A. Formation of Contracts
■■ UCC Article 2 Governs Contracts for the Sale of Goods

• Article 2 of the Uniform Commercial Code (UCC) governs July 2018, Essay 2
HIGH all contracts for the sale of goods. Goods are defined as all Feb 2017, Essay 1
things that are movable at the time of identification to the July 2015, Essay 3
7 of 24 Exams
contract (other than the money), including crops and the July 2014, Essay 2
unborn young of animals. Under the UCC, Common Law July 2013, Essay 7
principles continue to apply, unless the UCC specifically Feb 2013, Essay 2
displaces them. July 2010, Essay 2
• A contract for sale of goods may be made in any manner
sufficient to show agreement, including conduct by both
parties which recognizes the existence of such a contract. MEE TIP
State this rule at the beginning
of your essay answer for any
question concerning a sale of
goods contract.

07 CONTRACTS
■■ Applicable Law: UCC Article 2 vs. Common Law

• Article 2 of the Uniform Commercial Code (UCC) governs Feb 2018, Essay 3
MED all contracts for the sale of goods (goods are all things that
are movable at the time of identification to the contract,
1 of 24 Exams
other than the money). The Common Law governs all other
contracts (i.e. service or construction contracts).
• For mixed contracts, the predominant purpose of the
contract determines which law governs. If the predominant
purpose is the sale of goods, the UCC will apply. In some
states, when a contract divides payment between services
and goods, the UCC is applied to the goods section and the
common law is applied to the services section.
■■ Mutual Assent: Offer & Acceptance

• Mutual assent to enter into a contract requires: (1) an offer July 2018, Essay 2
HIGH by one party; AND (2) acceptance of that offer by the other Feb 2017, Essay 1
party. Feb 2011, Essay 6
4 of 24 Exams
o An offer is (1) a manifestation of intent to contract July 2007, Essay 1
by one party, (2) with definite or reasonably certain
terms, (3) that is communicated to an identified
offeree.
o Acceptance is a manifestation of assent to the
terms of the offer, which indicates a commitment to
be bound. Silence generally DOES NOT manifest
acceptance, but performance may be adequate. For
bilateral contracts, the start of performance
manifests acceptance. For unilateral contracts, the
start of performance only makes an offer irrevocable,
and the offer is accepted only when performance is
complete.
• Offers can be terminated before acceptance by: (a) rejection
or counter-offer by the offeree; (b) lapse of time; (c)
revocation by the offeror; OR (d) death/incapacity of either
party.
• Most offers may be revoked at any time before acceptance
through unambiguous words or conduct by the offeror to the
offeree indicating an unwillingness or inability to contract. A
revocation of an offer is effective when received. An offer
can also be terminated when communicated indirectly –
when (1) the offeror takes definite action inconsistent with
an intention to enter into the proposed contract; AND (2) the
offeree acquires reliable information to that effect.

07 CONTRACTS
• However, some offers are irrevocable including: (1) Option

contracts (when consideration is given for a promise to keep
an offer open); (2) a Merchant’s firm offer; AND (3) Offers
that were relied on to the offeree’s detriment.
o A Merchant’s Firm Offer is: (1) an offer to buy or
sell goods; (2) by a merchant (a person who deals
in goods of the kind); (3) in a signed writing; (4)
which states that the offer will be held open and is
not revocable during the time stated (or if no time is
stated for a reasonable time), but not to exceed three
months; AND (5) that the assurance to keep the offer
open must be separately signed by the offeror if the
form is supplied by the offeree (such as initialing
the specific paragraph). A merchant’s firm offer is
enforceable without consideration.
• A rejection of an offer is the manifestation of intent to not
accept an offer (through words or conduct), which thereby
terminates the offer. A rejection is effective upon receipt
by the offeror (when it comes into the possession of the
person). Unless there is an agreement to the contrary or a
renewal of the offer, an offer CANNOT be accepted after it is
rejected.
• A counteroffer (an offer with new terms) constitutes BOTH
a rejection that terminates the original offer AND a new
offer. A question or request for unspecified changed terms
(when no substitute terms are offered) is NOT a counteroffer,
and still allows for acceptance of the offer.
■■Mutual Assent: Timing of Acceptance/Revocation & the

Mailbox Rule
• Unless the offeror states otherwise, acceptance of an Feb 2017, Essay 1
HIGH offer is deemed accepted once the acceptance is sent July 2007, Essay 1
or communicated (i.e. placed in the mail). However,
2 of 24 Exams
revocation of an offer is deemed effective when received by
the offeree. A communication is received when it comes into
the possession of that person. An offer CANNOT be accepted
after it is revoked (unless there is an agreement to the
contrary). However, once a valid contract has been created by
acceptance of the offer, revocation is no longer possible.
• Under the Mailbox Rule, if the offeror mails a letter to the
offeree revoking the offer, but the offeree sends a letter to the
offeror accepting the offer before receiving the revocation
letter, a valid contract has been created. This is because
the acceptance was effective before the revocation became
effective. This rule DOES NOT apply to option deadlines
(when an offer is only open until a certain date or time).

07 CONTRACTS
■■Mutual Assent: Battle of the Forms (Mirror Image Rule

and UCC Exception)
• The common law mirror image rule holds that an July 1998, Essay 4
MED acceptance must exactly mirror the offer. Acceptance with

any additional terms or variations constitutes a counter-offer,
1 of 24 Exams
which revokes the initial offer.
• Under Article 2 of the UCC (which governs contracts for the
sale of goods) the mirror image rule DOES NOT apply. The
UCC states that acceptance does not have to mirror
the offer and the acceptance may include different or
additional terms, without revocation of the offer and thus
constituting a valid contract. However, the offeree’s different
or additional terms are deemed included in the contract
ONLY IF: (1) both parties are merchants; (2) the term is
not a material change; (3) the offer does not expressly limit
acceptance to the exact terms of the offer; AND (4) no
objection was made within a reasonable time. A material
change is any change that is likely to cause hardship or
surprise to the offeror (i.e. a disclaimer of warranties, an
arbitration clause, payment of shipping/handling charges).
■■ Mutual Assent: Implied-in-Fact Contracts

• Contracts may be created by the conduct of the parties, 0 exams
MED without spoken or written words. Conduct by both parties
will create a contract if: (1) the conduct is intentional; AND
0 of 24 Exams (2) each party knows (or has reason to know) that the other
party will interpret the conduct as an agreement to enter into
a contract.
■■ Indefiniteness or Absence of Terms
• In order for a contract to be valid, the agreement of the parties 0 exams
MED must be certain and explicit so that their full intention may
be ascertained to a reasonable degree of certainty. If the
0 of 24 Exams terms of the agreement are NOT certain (they cannot
be ascertained to a reasonable degree of certainty), the
agreement is indefinite and is not enforceable. A contract
that is indefinite as to duration is generally invalid and
unenforceable.
• In a contract for the sale of goods, the only essential term to a
contract is the quantity term. A valid contract may exist even
if there is no agreement on price, because a reasonable price
term (determined at the time the goods are delivered) will be
supplied under the UCC.

07 CONTRACTS
• Note, even if a contract is unenforceable as indefinite, a party

may still bring an action for quantum meruit (under a quasi-
contract theory), and recover the reasonable value of the
benefit conferred to the other party.
■■ Consideration: Bargained for Exchange & Substitutes

• Contracts are NOT enforceable without consideration by July 2014, Essay 2
HIGH BOTH parties. Consideration is a bargained for exchange July 2009, Essay 5
of a promise for a return promise or performance that benefits Feb 1995, Essay 7
3 of 24 Exams
the promisor or causes detriment to the promisee. For
example, the money paid for goods is consideration for
the seller, and the goods sold is consideration for the
buyer. Generally, past or moral consideration is NOT
sufficient to support a contract.
• An illusory contract is invalid, and occurs where one party
has no obligation to perform (thus adequate consideration is
not given by both parties).
• The Restatement (Second) of Contracts recognizes two
exceptions when a contract will be enforced even if it lacks
consideration:
o The Material Benefit Rule, which provides that a
promise made in recognition of a benefit previously
received by the promisor from the promisee is
binding (even without consideration) to the extent
necessary to prevent injustice. Examples include a
promise to correct a mistake or providing emergency
services or necessities. BUT, the material benefit
rule DOES NOT apply when: (a) the benefit was
conferred as a gift; OR (b) the value of the promise is
disproportional to the benefit conferred.
o Promissory Estoppel/Detrimental
Reliance: Contracts that lack consideration may
be enforced to avoid injustice under the doctrine of
promissory estoppel. Promissory estoppel applies
when: (1) a party reasonably and foreseeably relied
to his detriment on the promise of the other party; (2)
the promisor should have reasonably expected a
change in position in reliance of the promise; AND
(3) enforcement of the promise is necessary to avoid
injustice.

07 CONTRACTS
■■ Consideration: Settlement/Release of Legal Claims

• A settlement or release of legal claims is the voluntary 0 exams
MED relinquishment or surrender of some known right or privilege,
and constitutes valid consideration. A settlement is governed
0 of 24 Exams by principles of contract law, and is enforceable if the
agreement constitutes a valid contract. A valid settlement
or release prevents the party that signed the agreement from
pursuing specific legal claims as outlined by the terms of the
agreement.
■■ Modification of Contracts: Pre-Existing Duty Rule & Exceptions

• Under Common Law, contract modifications MUST Feb 2018, Essay 3
HIGH be supported by consideration. When modifying an July 2014, Essay 2
agreement, past performance or performance of a Feb 2011, Essay 6
4 of 24 Exams
preexisting duty owed to a party is NOT treated as adequate Feb 1995, Essay 7
consideration. However, several exceptions exist: (1) an
addition or change in the performance or promise; OR (2)
a fair and equitable modification due to unanticipated
changed circumstances and the contract is NOT yet
fully performed by either party (usually the unanticipated
circumstances must be severe or far beyond what was
foreseen).
• Under the UCC, there is NO consideration requirement
for contract modifications made in good faith. However,
modifications must be in writing if: (a) they fall within the
Statute of Frauds; OR (b) the original contract states that
modifications must be made in writing. Good faith means
honesty in fact and the observance of reasonable commercial
standards of fair dealing.
B. Defenses to Enforceability
■■ Incapacity
• A party MUST have capacity in order to enter into a 0 exams
MED contract. Contracts entered into by a person who DOES
NOT have capacity are voidable by the person who lacked
0 of 24 Exams capacity. Minors (persons under 18 years old) and those who
lack mental capacity (persons who cannot understand the
meaning and effect of the contract) generally lack capacity
to enter into a contract. However, minors may be bound for
contracts for necessities (i.e. food, shelter, clothing).

07 CONTRACTS
■■ Duress
• Duress takes two forms: physical compulsion and economic July 2014, Essay 2
MED duress.
• Physical Compulsion: If a person physically compels a
1 of 24 Exams person to agree to a contract, then the contract is void (the
conduct is not effective to create a contract). Examples
include physically forcing someone to sign a contract or
making someone agree to a contract via gun-point.
• Economic Duress: A contract is voidable on the ground
of economic duress when (1) a person makes an improper
threat, (2) that induces a party, (3) who has no reasonable
alternative but to enter into the contract. A mere threat to
breach a contract, without more, is generally insufficient. A
threat, even if improper, does not amount to duress if the
victim fails to take advantage of a reasonable alternative.
■■ Undue Influence
• Undue influence involves (1) the unfair persuasion of a 0 exams
MED person, (2) who is either (a) under the domination of the
person exercising the influence or (b) justified in assuming
0 of 24 Exams that the person will not act in a manner inconsistent with his
welfare because of the relationship between them (i.e. parent
and child, husband and wife, clergyman and parishioner,
physician and patient).
• If the contract is induced by undue influence by the other
contracting party, the contract is voidable by the victim. If the
contract is induced by a non-party to the contract, the contract
is voidable by the victim UNLESS the other party to the
contract (1) gives value or materially relies, (2) in good faith,
and (3) without reason to know of the undue influence on the
transaction.
■■ Mutual Mistake & Unilateral Mistake

• A contract is voidable (it may be rescinded or reformed) when 0 exams
MED there is a mutual mistake. Mutual mistake occurs when: (1)
both parties are mistaken as to a basic assumption on
0 of 24 Exams which the contract is made; (2) the mistake is material to
the contract; AND (3) the person asserting the mistake did
not bear the risk of the mistake (by agreement or by a party
treating their limited knowledge as sufficient).

07 CONTRACTS
• A unilateral mistake is (1) a mistake made by one party,

(2) that is unknown to the other party, (3) concerning a basic
assumption, (4) that has a material effect. A unilateral
mistake is generally NOT a valid defense to formation
of a contract. However, if one party knew or had reason
to believe that the other party was mistaken OR the mistake
would make enforcement of the contract unconscionable, the
contract is voidable by the mistaken party. When the mistake
involves price or value, the equitable remedy of rescission or
reformation will NOT be allowed because price/value is NOT
considered material.
■■ Misrepresentation
• A fraudulent misrepresentation occurs when one party July 2010, Essay 2
MED (1) knowingly, (2) makes a false representation, (3) of
a fact, AND (4) the other party reasonably relies on the
1 of 24 Exams misrepresentation to their detriment. A contract induced by a
fraudulent misrepresentation is voidable (may be rescinded)
by the injured party.
• A non-fraudulent misrepresentation occurs when there is
(1) a statement of material fact, (2) by a party or agent, (3)
that is false (no requirement of wrongdoing), (4) inducing
the contract, AND (5) the other party reasonable relies on the
misrepresentation to his detriment. A contract induced by a
fraudulent misrepresentation is voidable (may be rescinded)
by the injured party, UNLESS the misrepresented fact is not
material. A misrepresentation is material if it would likely
induce a reasonable person to agree.
• Concealment (an affirmative act intended to keep another
from learning of a fact) is equivalent to a misrepresentation
(a false statement of fact). Generally, there is no duty to
disclose information, UNLESS: (a) a fiduciary relationship
exists; (b) it is necessary to correct an earlier mistake; (c)
active concealment of a material fact occurs; OR (d) a person
is selling real property and knows material facts that affect the
value of the property (that the buyer is unaware of and cannot
reasonably discover).

07 CONTRACTS
■■ Illegality & Public Policy

• Courts will NOT enforce contracts that are illegal or contrary 0 exams
MED to public policy. Such contracts are void if the illegality
existed at the time of contract formation. If the contract was
0 of 24 Exams legal at the time of contract formation, but has subsequently
become illegal, performance will be discharged. A contract
with an illegal purpose is voidable by a party who didn’t
know of the illegal purpose.
■■ Unconscionability
• Unconscionability occurs when a contract or term shocks 0 exams
MED the conscience of the court. The determination of
unconscionability is made in light of the setting, purpose
0 of 24 Exams and effect of the transaction. Relevant factors a court will
consider include: weaknesses in the contracting process
similar to a lack of capacity, fraud, and other invalidating
causes, such as public policy grounds. Inadequacy of
consideration alone does not invalidate a contract.
• Unconscionability usually occurs if the contract/
term is BOTH substantively and procedurally
unconscionable. Procedural unconscionability occurs when
one party to the contract (usually the party who wrote the
contract) has a superior bargaining position over the other
party and uses that power to their advantage. An example
is engaging in unfair pressure or bargaining practices to
force the other party to enter into the contract. Substantive
unconscionability occurs when the contract contains terms
that are obviously unfair and one-sided in favor of the party
with the superior bargaining power.
• If a contract or term is found unconscionable a court may: (a)
refuse to enforce the contract; (b) enforce the contract
without the unconscionable term; OR (c) limit the application
of any unconscionable term.
■■ Statute of Frauds: Contracts Requiring a Signed Writing

• Contracts Requiring a Signed Writing: Under the Statute July 2015, Essay 3
HIGH of Frauds, the following contracts are not valid UNLESS July 2013, Essay 7
they are in a writing signed by the party to be charged: (1) July 2007, Essay 1
3 of 24 Exams
Marriage contracts; (2) Suretyships (where a guarantor
promises to take on the debt of another if that person fails
to pay) unless the main purpose exception applies (the
surety’s main purpose in making the promise was to benefit
himself); (3) Contracts that Cannot be fully performed in

07 CONTRACTS
1 year from the date the contract is entered into (there must
be no possible way the contract can be performed within 1
year); (4) Contracts for the Sale of real property or creating
an interest in real property (i.e. easements, leases over
one year); (5) Promises to pay an estate’s debt from the
personal funds of the Executor/Administrator; AND (6)
Contracts for the Sale of goods for $500 or more.
• Contracts for the Sale of Goods for $500 or More: MEE TIP
o Under Article 2 of the UCC, all contracts for the sale When an essay involves a sale
of goods for $500 or more MUST be in writing. The of goods contract for $500 of
writing must state the parties, the quantity and nature more, apply the specific rule and
exceptions for such contracts.
of the goods, and be signed by the party to be charged.
o However, four exceptions exist: (1) Merchant’s
Confirmatory Memorandum – In a sale of goods
contract between two merchants (two people carrying
on a business or trade), a writing that confirms an
agreement is sufficient even if it is signed by only
the party enforcing it (not the party whom it is
enforced against), as long as the party against whom
it is enforced did not promptly object; (2) Goods
Accepted or Paid For – A seller may enforce the
contract price of any goods accepted or paid for by
the buyer, but NOT the whole contract price if only a
portion of the total quantity of goods to the contract
are accepted; (3) Custom Made Goods – A seller
may enforce the contract price for custom made
goods, which are goods in which the seller has made
a substantial start AND are not suitable for sale
in the ordinary course of the seller’s business; (4)
Admission During Judicial Proceeding – A sale of
goods contract for $500 or more is enforceable without
a writing when the party to be charged admits that
there was a contract during a judicial proceeding
(i.e. in a deposition or courtroom testimony).
• Satisfying the Writing Requirement: In order to satisfy the
Statute of Frauds, a writing MUST: (1) be signed by (or on
behalf of) the party to be charged; (2) reasonably identify the
subject matter of the contract; (3) indicate that a contract
has been made by the parties; AND (4) state the essential
terms with reasonable certainty. The writing may be formal
or informal, including a written contract, will, notation on
a check, receipt, pleading, informal letter, or an electronic
communication (i.e. email). The statute of frauds DOES
NOT require that an agreement be contained in one signed
document; it may consist of several writings if (i) one of

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the writings is signed and (ii) the writings clearly indicate

that they relate to the same transaction. Signed means using
any symbol with the intent to adopt or accept a writing,
including: a written or typed name; initials; electronic
signature; or a symbol found in a billhead or letterhead
(when the UCC applies).
C. Contract Content & Meaning
■■ Parol Evidence Rule

• Under the Parol Evidence Rule, a party CANNOT introduce Feb 2018, Essay 3
MED evidence of a prior or contemporaneous agreement (either
The July 2010 MEE
oral or written) that contradicts a later writing. (Essay 2, Point One)
1 of 24 Exams • However, there are four exceptions where a court will mentioned the UCC
permit such evidence: (1) to correct a clerical error or rule regarding partial
integrations in the
typo; (2) to establish a defense against formation (that the “Note” section, but
contract wasn’t valid in the first instance); (3) to interpret parol evidence was
not a tested issue.
vague or ambiguous terms, but courts will interpret words
to represent their ordinary or plain meaning (the plain
meaning rule); and (4) to supplement a partially integrated
writing. The Parol Evidence Rule DOES NOT apply to
subsequent agreements.
• A partially integrated writing DOES NOT contain a complete
statement of all the terms the parties agreed to. As such,
proof of additional terms is allowed if the terms DO NOT
contradict the writing. Under the UCC, ALL writings are
presumed to be partial integrations, unless the writing is fully
integrated.
• A fully integrated writing is a complete and exclusive
statement of the terms, and discharges prior agreements to
the extent that they are within its scope. A merger clause
is evidence that the writing is complete on its face (fully
integrated) and cannot be supplemented with additional
consistent terms.
D. Performance, Breach, & Discharge
■■ Condition Precedent
• A condition precedent in a contract makes performance Feb 2011, Essay 6
MED conditional upon the completion of the condition. Usually,
a condition precedent is expressly stated in a contract. If
1 of 24 Exams a condition fails, no obligation of performance arises, and
thus no breach has occurred. However, occurrence of a
condition may be excused by the later action or inaction of

07 CONTRACTS
the person who is protected by the condition. This occurs in

2 instances: (1) A Protected Party’s Failure to Cooperate
or Make a Good Faith Effort – the protected party can
lose protection of the condition if he does not make a good
faith effort to satisfy the condition (this implied duty of good
faith will be satisfied when reasonable steps to satisfy the
condition are taken); and (2) Waiver – waiver occurs when
a protected party voluntarily gives up the protection of the
condition. The protected party can retract waiver for future
conditions to the extent that the other party has not relied on
the waiver.
■■ Implied Obligation of Good Faith and Fair Dealing

• Every contract contains an implied obligation of good faith 0 exams
MED and fair dealing, which requires the parties to act honestly
and fairly.
0 of 24 Exams • Under the UCC, an implied duty of good faith and fair
dealing is imposed upon each party’s performance to a
contract. Good faith is defined in the UCC as honesty in fact
AND the observance of reasonable commercial standards
of fair dealing. In the case of a merchant, good faith
extends even further to observance of reasonable commercial
standards of fair dealing in the trade.
■■ Impossibility, Impracticability, & Frustration of Purpose

• Impossibility: Performance is discharged when it is 0 exams
MED objectively impossible to perform a contract because of:
(1) death or physical incapacity of the person necessary to
0 of 24 Exams effectuate the contract (if the person can easily be replaced,
performance is NOT excused); (2) unanticipated destruction
of the subject matter necessary to fulfill the contract; OR
(3) a new law or regulation that was unanticipated makes
performance extremely and unreasonably difficult or
expensive. The Restatement (Second) of Contracts substitutes
the term “impossibility” with “impracticability”.
• Impracticability: Performance is discharged as impractical
when (1) an event occurs after contract formation, (2)
that is unanticipated by both parties at contract formation
(the event’s non-occurrence was a basic assumption of
the contact), (3) making performance extremely and
unreasonably difficult or expensive. This doctrine is
interpreted narrowly by the courts. Generally, an increased
cost to perform a contractual obligation is NOT sufficient to
render the contract excused due to impracticability.

07 CONTRACTS
• The Frustration of Purpose Doctrine discharges performance

under a contract if the purpose of the contract no longer
exists. Performance is excused if: (1) a party’s principal
purpose is substantially frustrated without his fault (the
contract is virtually worthless to the party); (2) by an
unforeseeable supervening event outside of the parties’
control (the event’s non-occurrence was a basic assumption of
the contact); AND (3) both parties knew the purpose at the
time of formation.
■■Minor Breach (Substantial Performance Doctrine) vs.

Material Breach
• Under the Common Law, a material breach will excuse
the non-breaching party’s performance. A minor breach, MEE TIP
MED
however, will NOT excuse performance, and the non- Only apply this rule for contracts
1 of 24 Exams
breaching party must still perform (though he may bring a governed by the Common Law
separate action for damages resulting from the breach). A (non-UCC contracts).
material breach occurs when a party DOES NOT render

Feb 2012, Essay 3
substantial performance (the party did not perform major
parts of the contract).
• To determine whether a breach is material, courts will
consider: (1) the extent of the benefit deprived to the
injured party (what was the extent of performance); (2) the
adequacy of compensation for loss to the non-breaching
party; (3) the extent the breaching party will suffer forfeiture
(hardship); (4) the likelihood that the breaching party will
cure; and (5) absence of good faith or fair dealing by the
breaching party (was the breach intentional, negligent, or
innocent).
• Unless the agreement provides otherwise, the work must be
substantially performed before payment can be demanded.
Divisible Performance (Part Performances as Agreed

■■
Equivalents)
• Unless otherwise agreed, a contract is divisible when: (1) Feb 2012, Essay 3
MED the performances to be exchanged can be divided into

corresponding pairs of part performances; (2) in a way that
1 of 24 Exams
the elements of each pair will be treated as if the parties
had agreed they were equivalents. Both elements MUST
be satisfied. In such instance, the performance of one part
of the contract will obligate the other party to perform their
respective part (i.e. usually payment).

07 CONTRACTS
• The divisibility rule may only be applied where calculation of

the parts are feasible. A purchase agreement may be divisible
if the price of separate items is stated in the contract, stated
on a price list (on which the contract was based), or can be
reliably ascertained.
■■ UCC Perfect Tender Rule & Exceptions

• Under Article 2 of the UCC, a seller must deliver conforming 0 exams
MED goods. The smallest non-conformity is a breach and the
buyer may reject all or a portion of the goods. However, two
0 of 24 Exams exceptions to this rule exist under the UCC: (1) if the seller
has the right to cure; and (2) in the Installment contract
context.
• A seller has a right to cure in 2 situations: (a) If the time
for performance has NOT yet expired, the seller can cure
within the contract time period remaining; OR (b) The seller
is allowed additional reasonable time to substitute tender if
it had reasonable grounds that the goods would be accepted
(i.e. when the same type of non-conforming goods were
accepted by the buyer in the past).
• Special rules apply when a seller provides non-conforming
goods under an installment contract. Installment contracts
may only be cancelled where an installment is so defective
that it substantially impairs the value of the entire
contract. Similarly, a buyer may reject an installment only if
the non-conformity substantially impairs that installment and
the time to cure has past.
• Under Article 2 of the UCC, a rejection of non-conforming
goods must be made within a reasonable time after their
delivery or tender.
■■ UCC Acceptance of Goods & Revocation of Acceptance

• If a buyer fails to reject goods after a reasonable opportunity July 2010, Essay 2
HIGH to inspect the goods, the buyer is deemed to have accepted July 2004, Essay 7
the goods. The buyer is obligated to pay for the purchase
2 of 24 Exams
once acceptance occurs (unless a revocation of acceptance is
allowed), but may still sue for breach of contract if the buyer
notifies the seller of the breach within a reasonable time.
• After the acceptance of goods, a buyer may later revoke
that acceptance only if: (1) the nonconformity substantially
impairs the value of the goods; AND (2) either the defect
was difficult to discover (a latent defect) or the buyer
accepted the goods on the reasonable assumption the defect
would be cured. Revocation of acceptance MUST occur
within a reasonable time after the buyer discovers or should

07 CONTRACTS
have discovered the nonconformity. The revocation is NOT

effective until the buyer notifies the seller. In addition, the
revocation of acceptance must occur before there is any
substantial change in the goods, not caused by their own
defects. If a buyer successfully revokes acceptance, he is
entitled to return of the purchase price.
■■ Anticipatory Repudiation & Adequate Assurances

• Generally, a party must wait for the other party to breach July 2015, Essay 3
HIGH before bringing an action to demand performance or for Feb 2013, Essay 2
damages. However, a non-breaching party may seek
2 of 24 Exams
damages before the time of performance is due if there
is an anticipatory repudiation by the other party. An
anticipatory repudiation occurs when a party unequivocally
communicates that he is unable or unwilling to perform.
• A party that anticipatorily breaches a contract may
retract its repudiation and restore the contract UNLESS
the aggrieved party has: (a) cancelled; (b) materially
changed his position; OR (c) indicated that he considers the
repudiation final.
• In addition, a party with reasonable grounds for being
insecure about the other party’s performance may demand
in writing adequate assurances from the other party that
it will perform in accordance with the contract. If a party
DOES NOT give adequate assurances after it is asked to
do so, the asking party may treat that as an anticipatory
repudiation.
• When an anticipatory repudiation occurs, the non-breaching
party may do any of the following: (a) treat the contract
as repudiated and sue for damages; (b) treat the contract
as discharged; (c) wait until performance is due and sue
when performance does not occur; OR (d) urge the party to
perform.
■■ Accord and Satisfaction

• A party is excused from their obligations under a contract 0 exams
MED when there has been an accord and satisfaction. An accord is
an executory contract between the parties promising to relieve
0 of 24 Exams a party of their contractual obligations in return for a specific
act. Upon satisfaction of that act, that person is excused from
further performance under the contract. If the party fails to
satisfy the accord, the other party may sue either under: (a)
the original contract; OR (b) the accord terms.

07 CONTRACTS
E. Warranties in Sales of Goods Contracts
■■ Express Warranty
• Under Article 2 of the UCC, a seller is liable for a breach July 2010, Essay 2
MED of an express warranty she makes to a buyer. An express
warranty is created when (1) a seller makes an affirmation
1 of 24 Exams of fact, promise, or description, or provides a sample, (2)
which relates to the goods, and (3) becomes part of the basis
of the bargain. A seller need not intend to create an express
warranty or directly use the words “warranty” or “guarantee”
to create an express warranty. An OPINION does not create
an express warranty (i.e. a seller’s praise or assertion of the
value of the goods). Once a buyer discovers the breach of
a warranty, he may sue for breach of contract. An express
warranty CANNOT be disclaimed by a seller.
■■ Implied Warranty of Merchantability

• Under Article 2 of the UCC, the Implied Warranty of 0 exams
MED Merchantability is implied in all sales of goods contracts,
and requires that all goods sold by a merchant (a person Note, the Implied
Warranty of
0 of 24 Exams dealing in goods of the kind) MUST be fit for their ordinary Merchantability was
purpose. Once a buyer discovers the breach of a warranty, he tested in a Torts essay
on the July 2016 MEE
may sue for breach of contract. (Essay 3, Point Two[a])
• While it is possible to disclaim the implied warranty of in the products
liability context, and
merchantability, a merchant must do so expressly in a said rule is included
conspicuous writing. Language of “as is” or “with all in the Torts portion of
faults” or language that puts the buyer on notice will the outline.
be sufficient for a disclaimer of the implied warranty of

merchantability.
■■ Implied Warranty of Fitness for a Particular Purpose
• Under the UCC, an implied warranty of fitness for a particular 0 exams
MED purpose is created when: (1) a seller knows or has reason to
know of the buyer’s particular purpose for which the goods
0 of 24 Exams are required; AND (2) the buyer relies on the seller’s skill
or judgment to select or furnish suitable goods. If the above
elements are met, the goods MUST be fit for the particular
purpose of the buyer, otherwise there is a breach of warranty.
• An implied warranty of fitness may be disclaimed: (a) by
a conspicuous writing; OR (b) through waiver if certain
fitness defects can be reasonably discovered upon inspection
by the buyer. Language is sufficient to disclaim a warranty
for fitness if it states that “There are no warranties which
extend beyond the description on the face hereof.”

07 CONTRACTS
■■ Warranty of Title
• Under the UCC, warranty of title is implied in all sales of Feb 2003, Essay 2
HIGH goods contracts, and includes the following warranties: (1) July 2000, Essay 6
the title conveyed shall be good, and its transfer
2 of 24 Exams
rightful; AND (2) the goods shall be delivered free from any
security interest or other lien or encumbrance, unless the
buyer has knowledge of the same.
• A seller who does not have title to goods generally CANNOT
transfer title to a buyer. HOWEVER, if the true owner
entrusts the possession of goods to a merchant (one who deals
in goods of that kind), then the merchant has the power to
transfer all rights the owner had to a buyer in the ordinary
course of business.
• The implied warranty of title may be expressly disclaimed by
specific language or by circumstances that puts the buyer on
notice that the seller does not claim title.
■■ Limiting Damages for Breach of Warranty

• By agreement, a seller may limit the buyer’s remedies 0 exams
MED for breach of a warranty so long as the limitation is
NOT unconscionable at the time the contract was
0 of 24 Exams formed. However, there are two exceptions to this
rule. Exception #1: Limiting a buyer’s remedy for personal
injuries for consumer goods is presumed unconscionable (but
a seller can rebut the presumption at trial). Exception #2: If
a limited remedy “fails of its essential purpose,” the limited
remedy will be set aside and the default remedy provisions of
UCC Article 2 will apply.
F. Third-Party Rights
■■ Third-Party Beneficiaries & Enforcement of Rights

• Generally, a party who is not in privity of contract with July 2016, Essay 5
MED another party cannot assert a claim for breach against that
party. However, when the party asserting the claim is an
1 of 24 Exams intended third-party beneficiary, the party has the same rights
as those in privity of contract, and can assert a claim for
breach.
o An intended third-party beneficiary is not a party
to the contract, but has rights under the contract
because the contracting parties contemplated that their
respective performances were intended to benefit an
identified third-party.

07 CONTRACTS
o An incidental beneficiary is a person that just

happens to benefit from the contract, but has NO legal
rights because the purpose of the contract was not
intended to benefit them.
• Enforcement of an Intended Third-Party Beneficiary’s
Rights: An intended third-party beneficiary may
enforce rights under a contract ONLY IF the rights have
vested. Rights vest when the third-party beneficiary has: (a)
manifests assent to the promise under the contract; (b)
detrimentally relied on the contract; OR (c) brings suit to
enforce the contract. Once rights have vested, a contract
CANNOT be changed or modified without the third-party’s
consent. A suit may only be brought against the promisor
(when the third-party is a creditor, a suit may also be brought
against the promise).
■■ Assignment of Rights
• Rights and benefits under a contract may be transferred July 2016, Essay 5
MED to a third-party if: (1) the assignor manifests his intent
to transfer the rights; AND (2) the assignee assents
1 of 24 Exams to the assignment. Consideration is NOT required for
an assignment, BUT if consideration is provided, the
assignment becomes irrevocable. Gratuitous assignments
may subsequently be revoked.
• Limitations: An assignment is valid UNLESS: (a) it
materially alters what is expected under the contract; (b) it
is prohibited by law or public policy; OR (c) it is precluded
by contract. Materially altering what is expected under the
contract occurs when the assignment: (a) materially changes
the duty of the obligor; (b) materially increases the burden
or risk imposed on the obligor; (c) materially impairs the
obligor’s chance of obtaining return performance; OR (d)
materially reduces the value of the return performance.
• Parties may attempt to prevent assignments in the original
contract through either: (a) Prohibitions: Terms in a
contract that prohibit the transfer of rights. If the rights
are assigned, the assignor is liable for damages, BUT
the assignment is still valid and enforceable by the
assignee; OR (b) Invalidations: Terms in a contract that
void all assignments. If the rights are assigned in this case,
the assignment is void.

07 CONTRACTS
• Rights of Assignee and Assignor: An assignee may sue the

obligor for non-performance. Any defense to enforcement
that could be used against the assignor may also be used
against the assignee. An assignee may also sue the assignor
for wrongful revocation of an assignment or for breach of an
implied warranty.
• Multiple Assignments: Where there are multiple gratuitous
assignments, the last assignee prevails. Where there are
multiple assignments for consideration, the first assignment
prevails UNLESS the later assignment: (1) has no notice of
the earlier assignment; AND (2) is the first to obtain payment
or indicia of ownership.
■■ Delegation of Duties
• All contract duties are delegable UNLESS: (a) the contract July 2016, Essay 5
MED prohibits delegations or assignments; (b) the delegation is
against public policy; (c) the contract is for personal services
1 of 24 Exams that calls for the exercise of personal skill or discretion; OR
(d) the delegation materially alters the expectancy of the
obligee (the party to which the duty is owed). An assignment
generally includes a delegation of the unperformed duties
under a contract. Generally, the obligor (the delegating/
assigning party) remains liable for non-performance of the
contract, UNLESS all the parties agree otherwise (known as a
novation).
G. Remedies
■■ Common Law Expectation Damages

• The general measure of damages for a breach of contract are Feb 2011, Essay 6
HIGH expectation damages. Expectation damages arise directly July 2008, Essay 8
from the breach, and are an attempt to put the non-breaching
2 of 24 Exams
party in the same position it would have been in but for
the breach. To recover, the damages must be: (1) caused
by the defendant (actual cause); (2) foreseeable (proximate
cause); (3) certain (damages cannot be speculative); AND
(4) unavoidable (the plaintiff must take reasonable steps to
mitigate his losses). An award of damages must account and
deduct for any costs the injured party avoided because of the
breach.

07 CONTRACTS
■■ Consequential Damages
• Consequential damages arise indirectly from the breach, July 2008, Essay 8
MED and are awarded because of the injured party’s special
circumstances. To recover, the damages MUST be:
1 of 24 Exams (1) reasonably foreseeable at the time of contract
formation; (2) arise from the plaintiff’s special circumstances
that the defendant knew or had reason to know of; AND
(3) certain (the damages cannot be speculative). An award of
damages must account for and deduct for any costs the injured
party avoided because of the breach.
■■ Punitive Damages
• Punitive damages are awarded to punish a wrongdoing Feb 2011, Essay 6
MED party. Punitive damages are generally NOT available in a
breach of contract action, but may be awarded in a contract
1 of 24 Exams action involving corresponding tort claims that allow such
damages (i.e. fraud).
■■ Specific Performance
• Specific Performance is an equitable remedy, and is 0 exams
MED only available if monetary damages are inadequate to
compensate an injured party (i.e. contracts for the sale of
0 of 24 Exams real property). Specific performance is NOT available for
employee/personal service contracts, BUT injunctive relief
may be awarded.
■■ UCC Seller’s Remedies & Damages

• Seller’s Remedies: Under Article 2 of the UCC, when a July 2015, Essay 3
HIGH buyer breaches a contract for the sale of goods, the seller Feb 1995, Essay 7
has the following remedies: (a) withhold delivery of the
2 of 24 Exams
goods; (b) cancel; (c) recover cover damages (the difference
between the resale price and the contract price of the goods),
which is used if the resale was made in good faith and in
a commercially reasonable manner.; (d) recover market
damages (the difference between the market price at the time
and place for tender); (e) recover lost profits if the seller is a
lost volume seller (a seller who regularly engages in the sale
of the goods at issue and has unlimited inventory); (f) stop
delivery of goods in the possession of a carrier or bailee when
he discovers the buyer to be insolvent; (g) stop delivery of
carload, truckload, planeload, or larger shipments of goods
when the buyer breaches; OR (h) replevy identified goods in
certain instances when the buyer is insolvent.

07 CONTRACTS
• Incidental Damages: A seller is also entitled to recover

incidental damages, which include any commercially
reasonable costs incurred resulting from the breach.
• Seller’s Right to Replevy Identified Goods: Under Article
2 of the UCC, an unpaid seller generally has no right to
repossess (replevy) goods that he sent to a buyer. However,
a seller of goods may repossess the goods he sent to a
buyer if: (1) the buyer was insolvent when it received the
goods; AND (2) the seller makes a demand within 10
days after the buyer received the goods. HOWEVER, if a
misrepresentation of solvency had been made to the seller in
writing within three months prior to the delivery of the goods,
the 10-day limitation to make a demand no longer applies.
■■ UCC Buyer’s Remedies & Damages

• Under the UCC, when a seller breaches a contract, the July 2010, Essay 2
HIGH buyer is entitled to either: (a) Cover Damages; (b) Market July 2004, Essay 7
Damages; OR (c) Loss-in-Value Damages. In addition, the
2 of 24 Exams
buyer may recover incidental and consequential damages.
• Cover Damages are the difference between the contract
price and the price of substitute goods. This is used as the
measure of damages if the buyer covered in good faith.
• Market Damages are used if the buyer did not cover in good
faith or did not cover at all, and are the difference between
the market price and the contract price.
• Loss-in-Value Damages are used if the buyer keeps the non-
conforming goods, and is the difference between the value as
promised and the value of the non-conforming goods.
■■ Waste Doctrine & Diminution in Value Damages

• Where a contractor’s performance has been incomplete or July 2008, Essay 8
MED defective for a construction contract, the usual measure of
damages is the reasonable cost of replacement or completion
1 of 24 Exams (expectation damages).
• However, when an award for the cost of completion is
wasteful, a court may apply the waste doctrine, wherein the
measure of damages becomes the difference in value of the
property/land (diminution in value). The waste doctrine will
apply if: (1) the contractor performs in good faith but defects
nevertheless exist; AND (2) remedying the defects would
entail economic waste (when the cost of completion greatly
exceeds the value of the completed work). In such instance,
diminution in value becomes the proper measure of damages.

07 CONTRACTS
• If the breach is willful and only completion of the contract

will enable the non-breaching party to use the land for its
intended purposes, the cost of completion is considered the
appropriate damage award.
■■ Restitution (Unjust Enrichment)

• Restitution (also referred to as unjust enrichment or quantum Feb 2012, Essay 3
HIGH meruit) is awarded to prevent unjust enrichment, and is July 2010, Essay 2
available when one party confers a benefit onto another party
2 of 24 Exams
(even if there is no enforceable contract). Damages will be
awarded based on the value of the benefit conferred upon the
defendant. A party CANNOT recover both expectation and
restitution damages.
• Under the Restatement (Second) of Contracts, a party is
entitled to restitution for any benefit that he has conferred
by way of part performance in excess of the loss that he has
caused by his own breach.
■■ Rescission
• Rescission treats the original contract as cancelled. It 0 exams
MED is available if there was a problem with the formation
of the contract (i.e. a defense to formation, fraud,
0 of 24 Exams misrepresentation). A contract will NOT be rescinded if: (a)
a valid equitable defense applies; OR (b) the plaintiff sued
for damages under the contract in a prior action. A plaintiff
may sue for both damages and rescission at the same time.
■■ Mitigation of Damages
• A plaintiff CANNOT recover damages as a result of a breach July 2008, Essay 8
MED that could have been avoided. Accordingly, a party must take
reasonable steps to mitigate his losses. If he fails to do so,
1 of 24 Exams the court will reduce the total damages by the amount that
could have been avoided.

08 CRIMINAL LAW & PROCEDURE
MPC = Model Penal Code
MEE TIP MEE TIP

Pay attention to the essay ques-
You must know and keep in mind the four elements of a crime when working tion to see if the examiners direct
through an essay question, even though many past essay questions have focused which law to apply. On past
on a specific crime element (i.e. mental state, physical act, or causation). exams, the examiners have pro-
vided the applicable law of the ju-
Elements of a Crime (Mens Rea, Actus Reus, risdiction (i.e. Model Penal Code,
the M’Naghten Test, or have even
Causation, & Concurrence) provided the statutory elements
In order to be guilty of a crime, the prosecution must prove that the of burglary and theft). If you are
defendant is guilty of ALL elements of the crime beyond a reasonable not directed which law to use,
doubt. Every crime has four elements: (1) a physical act (the actus then apply general principles of
criminal law and procedure.
reus); (2) a mental state element (the mens rea); (3) causation (both
actual and proximate cause); and (4) concurrence (the mental state and
physical act occur at the same time).
A. General Principles
■■ Elements of a Crime: Acts and Omissions

• The Physical Act (the actus reus) of the defendant must be 0 exams
MED voluntary. Generally, an omission (a failure to act) is NOT
criminal UNLESS: (1) the defendant had a legal duty to
0 of 24 Exams act; (2) the defendant had knowledge of facts concerning
the duty to act; AND (3) it was reasonably possible for
the defendant to act. A duty to act arises by: a contractual
duty; parent-child relationship; a duty taken on voluntarily
(including police officers or official duties); a statute that
creates a duty; or where the defendant creates the danger.
■■ Elements of a Crime: Causation

• Causation requires both: (1) actual causation (also July 2012, Essay 2
HIGH called cause-in-fact or “but for” causation); AND (2) July 2007, Essay 5
proximate cause. Actual causation is present when the
2 of 24 Exams
result (i.e. injury) would not have occurred “but-for” the
defendant’s conduct. Proximate cause requires asking if it
was foreseeable that the injury would have resulted from
the defendant’s physical act (was it a natural a probable
consequence).
• A Superseding Intervening Cause is a third party’s act
that breaks the chain of causation, which normally cuts
off the defendant’s liability. However, a third party’s act
will only break the chain if the intervening force was: (1)
independent of the defendant’s wrongful conduct; AND (2)
not foreseeable (it was so out-of-the-ordinary that it is not fair
to hold the defendant criminally responsible).

• Under the Simultaneous Acts Rule, a person’s act will still

be the proximate cause of a resulting injury if his wrongful
conduct created a condition of peril, even if later negligent
events combined to cause the injury (so long as the later
events are foreseeable). Similarly, a defendant’s wrongful act
that accelerates death is still the legal cause of death, even if
the person was going to die eventually.
■■ Elements of a Crime: Mental States

• The Mental State (the mens rea or intent element) is
HIGH explicitly stated in the statute for the specific crime the MEE TIP
defendant is charged with. Apply the appropriate mental
2 of 24 Exams
• Under the Common Law four mental state categories were state(s), depending on the fact
used: Specific Intent (intent or desire to engage in the pattern and the call of the essay
conduct or cause a certain result); General Intent (awareness question.
of acting a certain way); Malice (reckless disregard of a

July 2012, Essay 2
known risk that harm may occur); and Strict Liability (no
July 2010, Essay 8
mental state is required, only that the act occurs). A mistake
of fact is generally NOT a defense to strict liability crimes.
• The Model Penal Code (MPC) applies the following
categories of intent to crimes:
o A person acts purposefully if it’s his conscious object
to engage in the conduct or cause a certain result.
o A person acts knowingly if he is aware that his
conduct is of a particular nature or will cause a certain
result to occur.
o A person acts recklessly if: (1) he consciously
disregards a substantial and unjustifiable risk that
a certain result would occur; AND (2) the action is a
gross deviation from how a reasonable law-abiding
person would act. A person who creates such a risk,
but is unaware of it solely because of voluntary
intoxication, also acts recklessly.
o A person acts with criminal negligence if: (1)
he should have been aware of a substantial
and unjustifiable risk; AND (2) that failure to
perceive the risk is a gross deviation from what a
reasonable prudent person would observe in similar
circumstances.
• A majority of states use the Willful Blindness Standard,
wherein a person can be deemed to act knowingly when
he: (a) is aware that certain facts are highly probable; OR
(b) is intentionally ignorant to certain facts. A minority of
jurisdictions reject the willful blindness standard, and require
actual knowledge. In such a jurisdiction, knowledge may be
proved by circumstantial evidence.

B. Homicide
■■ Murder
• Under the Common Law, murder is the unlawful killing of July 2015, Essay 5
HIGH a person with malice aforethought. Malice aforethought is July 2007, Essay 5
established upon a showing of: (a) an intent to kill; (b) an
2 of 24 Exams
intent to inflict great bodily injury; (c) a reckless disregard Depraved-Heart
Murder was
of an extreme risk to human life (depraved-heart murder), mentioned and
such as shooting a gun in a crowded room; OR (d) an analyzed in the model
essay answer to the
intent to commit an inherently dangerous felony under the July 2015 MEE (Essay
Felony Murder Rule. Murder may be reduced to Voluntary 5, Point Two), but the
primary rule tested
Manslaughter if there was adequate provocation. was Manslaughter.
• Some jurisdictions divide murder into degrees. In these
jurisdictions, second-degree murder is the (1) unlawful
killing, (2) of a person, (3) with malice aforethought. First
degree murder occurs when the killing was deliberate and
premeditated.
• Under the Model Penal Code (MPC), murder is a killing
of a person, committed: (a) purposely or knowingly; OR
(b) recklessly under circumstances manifesting an extreme
indifference to the value of human life. Under the Felony
Murder Rule, such recklessness and indifference are
presumed if the killing occurred during the commission of or
attempt to commit a dangerous felony (robbery, rape, arson,
burglary, kidnapping) or felony escape.
• Reckless driving alone usually DOES NOT constitute a
depraved-heart murder, unless it was combined with other
aggravating factors (i.e. intoxication).
■■ Manslaughter
• Voluntary manslaughter is an intentional killing of a person July 2015, Essay 5
HIGH with adequate provocation. An adequate provocation reduces July 2012, Essay 2
the murder charge to manslaughter. Adequate provocation is
2 of 24 Exams
established if: (1) the defendant was provoked (a sudden and
intense passion caused him to lose control); (2) a reasonable
person would have been provoked; (3) there was not enough
time to cool off before the killing; AND (4) the defendant did
not cool off before the killing.
• Involuntary manslaughter is an unintentional killing of a
person committed: (a) recklessly (conscious disregard of
an unreasonable risk of death or serious bodily injury); (b)
under the misdemeanor-murder rule (a killing that results
during the commission of a misdemeanor); OR (c) during a
non-dangerous felony (a felony not included under the felony

murder rule). In some jurisdictions, involuntary manslaughter

may result from criminal negligence: (1) the defendant
knew or should have known that his conduct had a high or
unreasonable risk of death, and (2) his actions were a gross
deviation from how a reasonable person would have acted.
• Under the Model Penal Code (MPC), manslaughter is a
killing of a person: (a) committed recklessly (conscious
disregard of a substantial and unjustifiable risk of death or
great bodily injury); OR (b) which would otherwise be
murder, but is committed under the influence of extreme
mental or emotional disturbance for which there is
reasonable explanation or excuse. The MPC does not
distinguish between voluntary and involuntary manslaughter.
C. Other Crimes
■■ Theft Crimes & Receiving Stolen Property

• Theft crimes include the common law crimes of larceny, Feb 2019, Essay 6
HIGH false pretenses, and embezzlement. Feb 2014, Essay 5
o Larceny is the (1) trespassory taking, (2) and carrying July 2010, Essay 8
3 of 24 Exams
away, (3) of the personal property of another, (4)
Theft was analyzed
with the intent to permanently deprive the owner in the Feb. 2014 MEE
of the property. The intent to permanently deprive (Essay 5, Point One)
MUST exist at the time of the taking. Larceny by model essay answer,
but the statute for
trick occurs when one obtains possession (not title) of theft was provided in
the personal property of another by trick or deception. the essay question.
The primary issue
o False Pretenses occurs when one (1) obtains title, (2)
tested was Double
to personal property of another, (3) through a known Jeopardy.
false statement of material fact, (4) with intent
to defraud. An opinion or commercial puffery is
generally NOT considered to be false pretenses.
o Embezzlement is (1) the fraudulent or wrongful, (2)
conversion, (3) of personal property of another, (4)
by a person with lawful possession of the property.
Intent to permanently deprive the lawful owner of the
property is required.
• Receiving Stolen Property is a crime when a person (1)
receives possession of stolen property, (2) who knows the
property is stolen at the time of receiving it, (3) with the
intent to permanently deprive the owner of the property.
Under the modern view, knowledge that the property is stolen
can be inferred from all surrounding circumstances. In some
jurisdictions, proof of actual subjective knowledge is required.

■■ Robbery
• Robbery is the (1) trespassory taking and carrying away, 0 exams
MED (2) of the personal property of another person, (3) in their
presence, (4) by the use of force or threat of immediate The crime of
armed robbery was
0 of 24 Exams physical harm, (5) with the intent to permanently deprive the mentioned in the July
owner of the property. Armed robbery requires the elements 2009 MEE (Essay 7,
Point Two), but was
above plus the use of a dangerous weapon (i.e. gun, knife). not the issued tested.
The rule for Attempt
was the actual issue
■■ Burglary tested.
• Burglary is (1) the breaking and entering (entry without Feb 2019, Essay 6
HIGH consent, through an unlocked door/window, or even partial Feb 2014, Essay 5
entry is sufficient), (2) of a dwelling, (3) of another,
2 of 24 Exams
(4) at night, (5) for the purpose of committing a felony Burglary was analyzed
in the Feb. 2014 MEE
inside. Most jurisdictions have extended burglary to include (Essay 5, Point One)
any structure at any time. model essay answer,
but the statute for
burglary was provided
in the essay question.
■■ Rape & Statutory Rape The primary issue
tested was Double
• Rape: Under the Common Law, rape is (1) the unlawful Jeopardy.
MED sexual intercourse, (2) of a woman by a man (not her

0 exams
husband), (3) without her consent. Under the common law, a
0 of 24 Exams husband could NOT be convicted of raping his wife. Today,
the modern definition of rape now includes marital rape
(in most states) and makes gender irrelevant (of both the
perpetrator and the victim). Rape is a general intent crime,
and the slightest penetration completes the crime.
o A lack of effective consent exists when: (1) actual
force is used; (2) threats of immediate great
bodily harm are used; (3) the victim is incapable
of consenting (i.e. drunk, unconscious, or medical
condition); (4) the defendant fraudulently caused
the victim to believe that the act is not intercourse
(fraudulent inducement or promises are NOT
sufficient).
• Under the Model Penal Code (MPC), a male who has
sexual intercourse with a female (not his wife) is guilty
of rape if: (a) he compels her to submit by force or by
threat of imminent death, serious bodily injury, extreme
pain, or kidnapping (to be inflicted on anyone); (b) he
has substantially impaired her power to consent by secretly
drugging her; (c) the female is unconscious; OR (d) the
female is less than 10 years old. Under the MPC, Deviate
Sexual Intercourse has the same elements as above, but is
gender neutral.

• Statutory rape is (1) the unlawful sexual intercourse, (2)

with a person, (3) under the age of consent (as defined
by statute), regardless of whether it is against that person’s
will. Statutory rape is a strict liability crime (no intent is
required), and a mistake of fact as to the person’s age is NOT
a defense.
■■ Assault and Battery

• Battery is the (1) unlawful application of force, (2) directly 0 exams
MED or indirectly upon another person, their clothes, or close
personal belongings, (3) that results in injury or offensive
0 of 24 Exams contact. Battery is a general intent crime, meaning the
prosecution need only prove that the unlawful act itself was
intended; intent to cause injury is NOT required.
• Assault is either: (a) an attempted battery; OR (b) the
intentional creation of a reasonable apprehension of
imminent bodily harm to a person.
■■ Kidnapping & False Imprisonment

• Kidnapping: Under the Common Law, kidnapping is the (1) 0 exams
MED confining, restraining, or moving of a person, (2) without
authority of law. Under the Model Penal Code (MPC), a
0 of 24 Exams person is guilty of kidnapping when he abducts another
person for one of the following purposes: (a) his intent is
to compel a third person to pay ransom; (b) to facilitate
the commission of a felony; (c) to inflict bodily injury or
terrorize the victim; OR (d) to interfere with the performance
of any governmental or political function.
• False imprisonment involves the (1) unlawful, (2)
confinement of a person, (3) against their will, (4) with
knowledge that the restriction is unlawful. Under the MPC, a
person commits false imprisonment if he knowingly restrains
another person unlawfully so as to substantially interfere
with the person’s liberty.
■■ Arson
• Arson is the (1) malicious (intentional or reckless), (2) 0 exams
MED burning, (3) of a dwelling, (4) of another. A majority of
states have included damage caused by explosives, and have
0 of 24 Exams also expanded the types of structures destroyed to include
other types of buildings and vehicles. Under the Common
Law, a person could NOT be convicted of arson when burning
their own home (and instead would be guilty of misdemeanor
house burning).

■■ Criminal Possession Offenses

• A criminal possession charge normally involves the unlawful 0 exams
MED possession of an item (i.e. weapon or controlled substance)
according to the jurisdiction’s applicable statute. To be found
0 of 24 Exams guilty, usually the person must have BOTH: (1) knowledge
of the possession (that he is possessing the item); AND
(2) knowledge of what the item is (i.e. that the item is a
weapon). For drug offenses, knowledge usually DOES NOT
extend to the amount or weight of the substance.
D. Inchoate Offenses
■■ Attempt
• In most states, a person is guilty of attempt if the person: (1) July 2009, Essay 7
MED had the specific intent to commit a crime; AND (2) took an
overt act sufficiently beyond mere preparation.
1 of 24 Exams o Most states and the Model Penal Code require that
the overt act be a “substantial step” toward the
completion of that crime.
o A minority of states require that the overt act be
“proximate” or “dangerously proximate” to the crime.
• The attempt merges with the underlying crime. Thus, a
person CANNOT be convicted for attempting to commit a
crime and the crime itself. Legal impossibility is a defense to
an attempt crime, but factual impossibility is NOT a defense.
• Abandonment/Withdrawal Defense: In most jurisdictions,
abandonment or withdrawal is NOT a defense to attempt
once the person has taken a substantial step (conduct
beyond mere preparation) toward the completion of the
crime. In a minority of jurisdictions and the Model Penal
Code, abandonment before the completion of the crime
is an affirmative defense to attempt if: (1) the defendant
voluntarily renounces his criminal purpose (abandonment
resulting from any extrinsic factor is not deemed
voluntary); AND (2) completely abandons the effort to
commit the crime or otherwise prevents its commission.
■■ Conspiracy
• Conspiracy is a specific intent crime, and requires: (1) 0 exams
MED an express or implied agreement between two or more
people; (2) intent to enter into the agreement; (3) intent to
0 of 24 Exams pursue an unlawful objective (at common law this element
would be required to be met by ALL parties of the agreement,

while the modern trend & MPC only require it to be met

by ONE party); AND (4) the commission of an overt act in
furtherance of the unlawful objective (under common law no
overt act was required). The overt act DOES NOT need to
be criminal in nature; any act (including preparation) taken
by a co-conspirator in furtherance of the unlawful objective is
sufficient.
• Co-conspirators are liable for BOTH the conspiracy
itself AND all foreseeable crimes committed by
other co-conspirators in furtherance of the unlawful
objective. Conspiracy DOES NOT merge with the
completed crime, and therefore a defendant can be charged
with the conspiracy to commit the crime and the crime
itself. Withdrawal is NOT defense to the conspiracy, but is
a defense for crimes committed by co-conspirators after the
withdrawal.
■■ Solicitation
• A person is guilty of solicitation if: (1) he requests another 0 exams
MED person to commit a crime (or join in the commission
of a crime); (2) with the specific intent that the crime
0 of 24 Exams be committed; AND (3) the other person receives the
request. Solicitation merges with the substantive offense.
• Generally, there are NO defenses once the solicitation is
complete. However, some states and the Model Penal
Code recognize Renunciation as an affirmative defense to
solicitation, which requires the defendant: (1) to voluntarily
and completely renounce; AND (2) prevent the commission
of the crime.
E. Parties to a Crime
■■ Accomplice Liability
• An accomplice is one who: (1) aids, abets, or facilitates July 2012, Essay 2
MED the commission of a crime; AND (2) has dual intent (intent
to assist the primary party, and intent that the crime is
1 of 24 Exams committed). If the substantive crime involves recklessness
or negligence, the intent requirement will be satisfied if the
defendant acted with the requisite intent for the underlying
crime.

• An accomplice is liable for ALL crimes he committed/

assisted AND all foreseeable crimes committed by the
principal (the person who actually committed the crime). It is
irrelevant whether the accomplice actually committed the
crime. The accomplice can be convicted, even if the primary
actor is acquitted.
• However, certain limitations exist to accomplice
liability. First, merely being present when a crime is
committed (or knowing that a crime might result) will
NOT create accomplice liability. Second, a person cannot
be convicted if: (a) the person is a member of the class of
persons protected by the criminal statute; OR (b) the crime
inherently involves several types of participants and the
person is not criminally liable under the statute. Third, a
minority of jurisdictions DO NOT allow accomplice liability
for involuntary manslaughter as a matter of law; although
most jurisdictions do allow it.
• Withdrawal is a defense to liability and is valid ONLY IF
the accomplice withdraws his involvement before the crime
becomes unstoppable. Withdrawal can be accomplished
by either (a) repudiating the encouragement given; or (b)
neutralizing the assistance (if more than encouragement was
given).
F. Defenses
■■ Duress
• The affirmative defense of duress excuses a defendant’s July 2015, Essay 5
MED conduct if it was the result of (1) a threat of imminent
death or serious bodily injury, (2) to the defendant or
1 of 24 Exams another, AND (3) the defendant reasonably believed he was
unable to avoid the harm by non-criminal conduct. The
defendant MUST reasonably believe that the only way to
avoid imminent death or serious bodily injury to himself
or to another is to engage in the criminal conduct. In most
jurisdictions, this defense is NOT available for intentional
killings.

■■ Insanity
• A defense of insanity for a severe mental defect or disease Feb 2018, Essay 2
HIGH will be analyzed under one of four tests, all of which consider July 2015, Essay 5
the defendant’s mental state at the time of the offense:
2 of 24 Exams
o The M’Naghten Test: (1) A mental disease or defect
that (2) resulted in the defendant being: (a) unable
to know the wrongfulness of his conduct; OR (b)
unable to understand the nature and quality of his
acts. Some states have defined wrongful as a legal
wrong (that the act was criminal), while other states
define wrongful as morally wrong (an act condemned
by society).
o The Model Penal Code Test: As a result of a mental
MEE TIP
disease or defect, the defendant was: (a) unable to
appreciate the criminality of his conduct; OR (b) Pay attention if the bar
examiners tell you which insanity
unable to conform his actions to the law.
test to apply. On both the Feb
o The Irresistible Impulse Test: The defendant’s 2018 MEE (Essay 2) and July 2015
mental illness made him: (a) unable to control his MEE (Essay 5), the examiners
actions; OR (b) unable to conform his actions to the instructed that the jurisdiction
in the fact pattern followed the
law. M’Naghten test.
o The Durham Test: The defendant must show that his
unlawful conduct was the product of mental illness.
• A defendant will be acquitted of the crime if he meets the
applicable insanity test of the jurisdiction. Most states use
either the M’Naghten or the Model Penal Code test.
• Most states require the defendant to prove insanity by the
preponderance of the evidence (or by clear and convincing
evidence in federal court). However, some states require the
prosecution to prove that the defendant was not insane beyond
a reasonable doubt.
■■ Justification: Self-Defense & Defense of Others

• Self-defense is a complete defense to a crime. 0 exams
MED o The use of non-deadly force is justified when (1)
the defendant reasonably believes, (2) that he is in
0 of 24 Exams imminent danger of being harmed.
o The use of deadly force is justified when (1) the
defendant kills another based on a reasonable belief,
(2) that he was in imminent danger of being killed
or suffering great bodily injury, AND (3) the use of
deadly force was necessary to defend against the
danger.

• In a minority of jurisdictions, there is a duty to retreat

before deadly force may be used. In those jurisdictions, the
defendant must show that: (a) there was no opportunity to
retreat; OR (b) retreat could not have been accomplished
safely. There is NO duty to retreat if the defendant was
attacked in her own home.
• An aggressor (the person who starts the altercation) may
only use force in self-defense if: (a) he withdraws from the
altercation and communicates such intent; OR (b) the other
person suddenly escalates the fight with deadly force and
withdrawal is not possible.
• The same rules for self-defense apply to the defense of
others.
• Imperfect self-defense is a mitigating defense to
murder that can reduce a murder charge to voluntary
manslaughter. Imperfect self-defense is applicable when the
defendant kills another based on a good faith belief that (1)
she was in imminent danger of being killed or suffering great
bodily injury; AND (2) the use of deadly force was necessary
to defend against the danger; BUT (3) at least one of those
beliefs was unreasonable. Only some courts allow imperfect
self-defense to be applied to situations where the defendant
was defending another person.
■■ Intoxication
• Voluntary intoxication (the ingestion of an intoxicating 0 exams
MED substance by the defendant’s own free will) is ONLY a
defense to specific intent crimes if it negates the state of
0 of 24 Exams mind required to commit the offense.
• Involuntary intoxication (the ingestion of an intoxicating
substance by force or without knowledge of its nature/effect)
is a defense to all crimes if the defendant is deemed insane
at the time of the offense. This defense is analyzed under the
insanity test of the particular jurisdiction.
■■ Mistake of Fact or Law

• A mistake of fact is a defense to a crime if it negates the state 0 exams
MED of mind required for the offense. For specific intent crimes,
the mistake of fact may be unreasonable. For general intent,
0 of 24 Exams negligent, or reckless crimes, the mistake must be reasonable.
• A mistake of law (not knowing the activity was illegal) is
generally NOT a defense to a crime.

G. Arrest, Search, and Seizure (4th Amendment)
MEE TIP
Use the following framework to analyze 4th Amendment search and seizure
issues on the exam:
Step 1: Does the contesting person have a 4th Amendment right?
 If so, then apply the “Fourth Amendment Right – Government
Action & Standing” rule.
• Need both:
o Government Action, and
o Standing
Step 2: Is the person contesting an arrest?
 If so, then apply the “Arrests” rule.
Step 3: Is the person contesting his temporary seizure (and resulting
search of his person)?
 If so, then apply the “Request for Information, Stop and Inquire, &
Stop and Frisk” rule.
Step 4: Is the person contesting a search?
 If so, then apply the “Warrant Requirement for All Searches, Unless
an Exception Applies” and Warrant Exception rules.
• Generally, analyze the following:
o Was the search conducted pursuant to a valid warrant?
 If so, then search is valid.
o If no valid search warrant, does an exception apply?
 If so, search is valid.
 If not, then the evidence is generally
excluded at trial.
■■ Fourth Amendment Right – Government Action & Standing

• Under the 4th Amendment of the U.S. Constitution, a person July 2009, Essay 7
MED is granted protection from unlawful government searches
and seizures. Acts by private individuals are NOT protected
1 of 24 Exams by the 4th Amendment.
• In order to challenge a search or seizure, the challenging
party MUST have standing. To have standing, the
challenger must have a reasonable expectation of privacy
regarding the item or place searched. Courts have held
that individuals have a reasonable expectation of privacy
in that of which they own or possess. The U.S. Supreme
Court has extended this doctrine to permit an overnight
guest to challenge a warrantless search in a home in which

he was staying. However, courts have held that people

DO NOT have a reasonable expectation of privacy in the
following: (1) a paint scrapping taken from one’s car; (2)
a person’s bank account records; (3) anything visible from
public airspace; (4) garbage left on the curb; (5) the sound of
one’s voice; (6) odors coming from one’s property; (7) one’s
handwriting; and (8) anything that can be seen in or across
areas outside one’s home.
■■ Arrests
• Under the 4th Amendment of the U.S. Constitution, a person July 2011, Essay 2
MED has the right to be free from unlawful searches and seizures by
the government. Seizure under the 4th Amendment includes
1 of 24 Exams arrests.
• For an arrest to be proper, the police officer MUST have
probable cause. Probable cause arises when the police
officer (1) has trustworthy facts or knowledge, (2) sufficient
to warrant a reasonable person to believe, (3) that the person
committed a crime. If a police officer has probable cause
to believe that a person has committed even a very minor
criminal offense in his presence, he may arrest that person
without violating the 4th Amendment. A police officer DOES
NOT need firsthand knowledge to have probable cause; it
may be based on the firsthand knowledge of another (i.e. an
informant).
• If an arrest is conducted in a public place, probable cause is
all that is required. However, a warrant is required if a police
officer arrests someone in or at their home (unless exigent
circumstances exist).
■■ Request for Information, Stop and Inquire, & Stop and Frisk
• Under the 4th Amendment of the U.S. Constitution, a person Feb 2008, Essay 8
MED is granted protection from unlawful government searches and
seizures. A seizure occurs when a reasonable person would
1 of 24 Exams have believed that he was not free to leave.
• The police may make a request for information anytime
except on “whim or caprice.”
• A police officer may stop and inquire if the police officer
(1) has reasonable articulable suspicion, (2) that criminal
activity is afoot. A stop and inquire allows only a brief
detention for questioning, after which the suspect must be
released.

• A police officer may only stop and frisk a person if the

police officer (1) has reasonable articulable suspicion, (2)
that criminal activity is afoot, AND (3) that the person has a
weapon. Under the plain feel doctrine, a police officer may
only seize items he or she reasonably believes is contraband
or a weapon during the frisk.
• Reasonable suspicion is defined as the quantum of knowledge
sufficient to induce an ordinarily prudent and cautious person
under the circumstances to believe that criminal activity is
at hand. Courts use a sliding scale based on the particular
factual circumstances to determine whether reasonable
suspicion was present.
Warrant Requirement for All Searches, Unless an Exception

■■
Applies
• The 4th Amendment of the U.S. Constitution provides that July 2011, Essay 2
HIGH everyone should be free from unreasonable searches and July 2009, Essay 7
seizures. Thus, a police officer will need a warrant to conduct
2 of 24 Exams
a search and to seize items, unless a valid exception applies.
• In order for a search warrant to be valid: (1) there must
have been probable cause (reliable information that it is
likely that evidence of illegality will be found at a particular
location); (2) the warrant must state with particularity the
place to be searched and the items to be seized; AND (3) it
must be issued by a neutral and detached magistrate.
• Evidence obtained without a valid warrant should be excluded
unless it falls under the exceptions that permit a warrantless MEE TIP
search and seizure. The warrant exceptions are: (1) plain
For search and seizure questions,
view doctrine; (2) exigent circumstances; (3) the automobile also apply any relevant warrant
exception; (4) a search incident to an arrest; (5) consent; (6) exception rules based upon the
inventory searches; (7) stop and frisk; and (8) where the U.S fact pattern and the call of the
Supreme Court has concluded there is a special need. essay question.
■■ Exception to Warrant Requirement: Plain View Doctrine

• Under the Plain View Doctrine, the police may seize evidence July 2011, Essay 2
MED without a warrant if (1) it is observed in plain view (with any
of the five senses), (2) from a place the officer is lawfully
1 of 24 Exams permitted to be, AND (3) probable cause exists to believe
that the items are evidence of a crime or contraband.

■■ Exception to Warrant Requirement: Exigent Circumstances

• Exigent circumstances exist if: (a) the evidence is evanescent 0 exams
MED (the evidence would dissipate or disappear in the time it
would take to obtain a warrant); (b) it’s necessary to prevent
0 of 24 Exams the imminent destruction of evidence; (c) the police are
in hot pursuit of a felon and the evidence is in plain view;
OR (d) the emergency aid exception applies – to render
emergency assistance to an injured person or to protect a
person from imminent injury.
■■ Exception to Warrant Requirement: Automobile Exception

• The automobile exception allows a warrantless search of a car July 2011, Essay 2
MED where the police have probable cause that either contraband
OR evidence of a crime will be found in the vehicle. If
1 of 24 Exams there is probable cause, the police can search the entire
vehicle AND any packages, luggage, or containers that may
reasonably contain the items for which there is probable
cause. In order to search a vehicle after a traffic stop, the
police officer would need to acquire probable cause prior
to searching the vehicle. A police officer DOES NOT need
firsthand knowledge to have probable cause; it may be based
on the first-hand knowledge of another.
■■ Exception to Warrant Requirement: Search Incident to Arrest

• Under the 4th Amendment of the U.S. Constitution, a police 0 exams
MED officer who has probable cause to make an arrest can make a
warrantless search incident to a lawful arrest. In this regard,
0 of 24 Exams he can search not only the suspect’s person, but also areas
within the suspect’s “wingspan”. If the suspect is arrested
in an automobile, the “wingspan” includes the passenger’s
compartment. In addition, pursuant to a lawful arrest, a police
officer can make a warrantless search of an automobile (or
any containers found in the car) if he has reason to believe it
contains contraband.
■■ Exception to Warrant Requirement: Consent

• Consent is an exception to the warrant requirement if it is 0 exams
MED given freely, voluntarily, and intelligently. A third person
with possessory rights of the property may consent to a
0 of 24 Exams search, but that person must have authority. If the police
have reason to know that the person consenting might not
have authority, and they continue the search, the search is
unlawful.

• When two or more people share common authority over the

residence or premises, any one of them may consent to a
lawful search. However, a police officer may only search
common areas of the residence and private areas of the person
providing the consent. A warrantless search of private areas
(i.e. bedrooms and locked areas) of persons that did not
provide consent is generally unlawful.
■■ Exception to Warrant Requirement: Inventory Search

• An inventory search and seizure (either of a defendant’s 0 exams
MED possessions during incarceration or of a vehicle impounded
following the lawful arrest of the driver) is an exception
0 of 24 Exams to the warrant requirement of the 4th Amendment of the
U.S. Constitution. To be valid, an inventory search must
be both: (1) reasonable; AND (2) conducted pursuant to
established police agency procedures (that are designed to
meet the legitimate objectives of the search while limiting the
discretion of the officer in the field).
H. Confessions, Privilege Against Self-Incrimination, and Right to Counsel
■■ Confessions: 14th Amendment Due Process Clause

MEE TIP
• A defendant’s confession may be excluded at trial
For confessions prior to the
MED under the 5th, 6th, or 14th Amendments of the defendant being charged with
U.S. Constitution. Under the 14th Amendment Due a crime, analyze the problem
1 of 24 Exams Process Clause, if a confession is the product of police under the 5th and 14th
Amendments. For confessions
coercion that overbears the suspect’s free will, then the
that occur after a defendant is
confession is inadmissible. The police may use coercive charged with a crime, then also
conduct (i.e. lying) UNLESS the coercion overcomes the apply the 6th Amendment.
defendant’s free will.
• When determining whether a confession overcame a Feb 2008, Essay 8
person’s free will, courts consider: (1) the characteristics
of the interrogation (i.e. length of the interrogation and
police tactics used); AND (2) the characteristics of the
individual (i.e. age and experience).
■■Confessions: 5th Amendment Privilege Against Self-

Incrimination & Miranda Rights
• A defendant’s confession may be excluded at trial July 2017, Essay 5
HIGH under the 5th, 6th, or 14th Amendments of the July 2016, Essay 2
U.S. Constitution. Under the 5th Amendment Privilege July 2014, Essay 1
5 of 24 Exams
Against Self-Incrimination, a person has a right to not July 2011, Essay 2
incriminate oneself and MUST be given Miranda warnings Feb 2008, Essay 8
during a custodial interrogation.

• Miranda warnings inform suspects that: (1) they have

the right to remain silent; (2) anything they say can be
used against them in court; (3) they have the right to
talk to an attorney and have one present when they are
questioned; AND (4) if they cannot afford an attorney, an
attorney will be provided to them.
• Miranda rights attach when there is a custodial interrogation
of a suspect. If a person is not subject to a custodial
interrogation, no Miranda warnings need to be given.
o A person is in custody when they reasonably believe
they are not free to leave.
o A person is subject to interrogation when the police
knew or should have known that their conduct was
likely to elicit an incriminating response.
• Miranda rights only protect statements or acts that are
communicative or testimonial in nature. In order to be
testimonial, an accused’s communication must (explicitly
or implicitly) relate to a factual assertion or disclose
information. Crying is NOT considered a testimonial
communication. Additionally, Miranda rights DO NOT apply
to any spontaneous statements made by a person.
• Under the Public Safety Exception, limited interrogation
without Miranda warnings IS ALLOWED when police
officers ask questions reasonably prompted by a concern
for public safety OR the safety of the officer (i.e. to secure a
weapon).
• When invoking a Miranda right, it MUST be clear and
unambiguous. For example, merely stating “I think I
need a lawyer” or “maybe I should talk to a lawyer” is
insufficient. The police have no obligation to stop questioning
a suspect if the request is not clear and unambiguous.
o Once the right to remain silent is invoked,
the police may later question the suspect if they
first scrupulously honor his right to remain
silent. Additionally, if the right is invoked, the
defendant’s silence CANNOT be commented on by
the prosecution or be used to incriminate him at trial.
o Once the right to counsel is invoked, the police must
stop questioning the suspect on ANY crime until
the suspect has spoken with an attorney. However,
a custodial interrogation may be reinitiated if: (1)
the suspect has been re-advised of his Miranda
rights; (2) has provided a knowing and voluntary
waiver; AND (3) either (a) counsel is present, (b)
the suspect initiates the communication, or (c) at
least 14 days have passed since the suspect was

released from custody. A suspect’s statement that

clearly indicates a willingness to speak about matters
relating to the investigation is treated as an initiation
of communication, but questions or comments relating
to routine incidents of being in custody do not.
• A suspect may waive his Miranda rights. A valid waiver
must be made: (1) voluntarily (it is the product of the
defendant’s free will); AND (2) knowingly and intelligently
(the defendant must understand the nature of the right being
waived and the consequences for waiving it).
o When determining whether a confession overcame
a person’s free will, courts consider (1) the
characteristics of the interrogation (i.e. length of
the interrogation and police tactics used); AND (2)
the characteristics of the individual (i.e. age and
experience).
o The police may use coercive conduct (i.e. lying)
UNLESS the coercion overcomes the defendant’s
free will. Police failure to provide the defendant
with outside information (such as efforts by his
attorney to reach him) DOES NOT invalidate a waiver
UNLESS the information withheld was essential to the
defendant’s ability to make a valid waiver.
• A defendant/suspect’s statements made in violation of his
Miranda rights are subject to the Exclusionary Rule.
■■ Confessions: 6th Amendment Right to Counsel

• A defendant’s confession may be excluded at trial July 2014, Essay 1
MED under the 5th, 6th, or 14th Amendments of the
U.S. Constitution. Under the 6th Amendment of the
1 of 24 Exams U.S. Constitution, the accused has the right to counsel
in all criminal prosecutions (except State misdemeanor
prosecutions that do not carry a risk of jail time). The right to
counsel attaches once formal adversarial judicial proceedings
have been commenced (i.e. formal charge, preliminary
hearing, indictment, or arraignment).
• The 6th Amendment right to counsel is offense-
specific. Thus, it only applies to the offenses the defendant
has formally been charged with, and DOES NOT prevent
the police from questioning the defendant about unrelated
offenses without an attorney. Once a suspect’s right to
counsel has attached, any attempts to deliberately elicit
statements from him in the absence of his attorney violate the
6th Amendment.

• The right to counsel may be waived. A valid waiver must be

made: (1) voluntarily (it is the product of the defendant’s free
will); AND (2) knowingly and intelligently (the defendant
must understand the nature of the right being waived and the
consequences for waiving it).
■■ Right to Counsel & Effective Assistance of Counsel at Trial

• Under the 6th Amendment of the U.S. Constitution, the 0 exams
MED accused has the right to counsel in all criminal prosecutions
that carry a substantial risk of jail time (more than 1 year),
0 of 24 Exams including at trial. The right to counsel attaches once formal
adversarial judicial proceedings have been commenced
(i.e. formal charge, preliminary hearing, indictment, or
arraignment).
• The 6th Amendment also includes the right to have effective
assistance of counsel, which includes the effective aid in the
preparation and trial of the case. In order to prove ineffective
assistance of counsel in violation of the Sixth Amendment, the
defendant must show that: (1) his counsel’s performance was
deficient; AND (2) but for the counsel’s errors, the result of
the trial would have been different. If ineffective assistance
of counsel is shown at trial, then the verdict must be reversed
and the defendant is entitled to a new trial.
I. Line-ups & Police-Arranged Identification Procedures
■■ Line-Ups & Police-Arranged Identification Procedures

• Due Process Clause: The Due Process Clause of the 14th 0 exams
MED Amendment is violated when a line-up is unnecessarily
suggestive resulting in a substantial likelihood of
0 of 24 Exams misidentification. If there is a violation, the identification is
inadmissible at trial. Under the Independent Source Rule,
an in-court identification is admissible at trial (even if a line-
up identification is tainted) when (1) the witness identified the
defendant in-court based on the witness’ previous knowledge,
(2) which is trustworthy, AND (3) was obtained by the
witness in a previous transaction (usually during the crime).
• Right to Counsel: Under the 6th Amendment, a person has a
right to counsel after being formally charged with a crime that
carries a substantial risk of jail time (more than 1 year), which
includes a post-charge lineup. However, the attorney cannot
dictate how the line-up proceeds, and is instead merely a

spectator to observe any deficiencies or due process violations

to be addressed at trial. A person DOES NOT have a 6th
Amendment right to counsel at a pre-charge lineup because
the right has not yet attached, as the person has not been
formally charged with a crime. Likewise, there is no right to
counsel for a photo-identification.
• Pre-Trial Identifications & the 5th Amendment: Courts
have held that pre-trial identifications (lineups, photo
identifications), blood tests, fingerprints, and voice
identifications are NOT testimonial in nature and fall outside
5th Amendment protection. As such, a suspect in custody
after an arrest CANNOT refuse participation in a lineup.
J. Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine
■■ Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

• Under the Exclusionary Rule, evidence obtained in violation July 2011, Essay 2
HIGH of a defendant’s 4th, 5th, or 6th Amendment rights is Feb 2008, Essay 8
inadmissible in a criminal case. Additionally, all derivative
2 of 24 Exams
evidence is inadmissible under the fruit of the poisonous
tree doctrine.
• However, the exclusionary rule DOES NOT apply if: (a) it
is shown that the police had an independent source for the
secondary evidence (where there is a source for discovery
and seizure of the evidence that is distinct from the original
illegal source); (b) the discovery of evidence would have
been inevitable regardless of the illegality; (c) through
the attenuation doctrine (which admits evidence where a
defendant’s free will has been restored through the passage of
time and/or intervening events); OR (d) the police relied in
good faith on a defective search warrant.
• In addition, there are limitations on the Exclusionary Rule
as applied to Miranda violations.
o Limitation #1: Failure to give Miranda warnings
DOES NOT require suppression of the physical
evidence found because of the statements (as long as
the statements are voluntary).
o Limitation #2: Subsequent statements made after
Miranda warnings are admissible, UNLESS a non-
Mirandized previous statement was obtained through
the use of inherently coercive police tactics offensive
to due process.

o Limitation #3: Statements obtained in violation

of a suspect’s Miranda rights are inadmissible
in the Prosecution’s case-in-chief. BUT, they
may be used to impeach a defendant on cross
examination. However, such statements CANNOT
be used to impeach the testimony of third-party
witnesses.
K. Fair Trial and Guilty Pleas
■■ Right to a Jury Trial

• The 6th Amendment, as applied to the states through the 14th Feb 2014, Essay 5
MED Amendment, guarantees a criminal defendant the right to a
jury trial for offenses where imprisonment may be greater
1 of 24 Exams than six months. Any fact (other than a prior conviction)
that increases the maximum penalty for a crime MUST be
submitted to a jury, and proven beyond a reasonable doubt by
the prosecution. A minimum of six jurors are required, and
the verdict must be unanimous. However, the Supreme Court
has upheld non-unanimous verdicts when the jury panel was
much greater than six jurors (i.e. a 12-person jury panel).
■■ Competence to Stand Trial

• A defendant is competent to stand trial if he: (1) has Feb 2018, Essay 2
MED sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding (he must be able
1 of 24 Exams
to assist in preparing his defense); AND (2) has a rational
and factual understanding of the proceedings against him.
• Due process REQUIRES a trial court to conduct a
competency hearing, either on motion or sua sponte, if there
is sufficient doubt about a defendant’s competence. This
obligation exists throughout the trial. After sufficient doubt as
to competency arises, the burden of evaluating competency is
placed upon the court and court-appointed experts.
• A criminal defendant cannot be tried if he is deemed incom-
petent, but competence may be reassessed at a later date if his
mental condition improves.

L. Double Jeopardy
■■ Double Jeopardy
• The Double Jeopardy Clause of the 5th Amendment prevents Feb 2014, Essay 5
MED a defendant from being prosecuted twice for the same
offense. In a jury trial, jeopardy attaches once the jury is
1 of 24 Exams impaneled and sworn.
• Double jeopardy will bar separate prosecutions of a
defendant arising out of the “same offense”. Under the
Blockburger test, two distinct crimes DO NOT constitute the
“same offense” for double jeopardy purposes if each crime
requires proof of a fact which the other does not.
• However, the following exceptions exist where a defendant
can be retried: (1) when the first trial ends in a hung jury; (2)
when manifest necessity exists to end the original trial; OR
(3) when the original trial is terminated at the defendant’s
request and it’s not for an acquittal on the merits.
• A final judgment on a lesser included offense bars prosecution
of a greater offense on the same facts UNLESS the greater
offense: (a) did not exist at the time of trial; OR (b) was not
discovered despite due diligence.
M. Burden of Proof and Persuasion
■■ Burden of Proof, Presumptions, & Sufficiency of Evidence

• The prosecution must prove every element of a crime Feb 2014, Essay 5
HIGH beyond a reasonable doubt. The burden of proof July 2009, Essay 7
CANNOT be shifted to the defendant under the Due Process
2 of 24 Exams
Clause. However, a state may impose that affirmative
defenses be proved by the defendant (i.e. insanity or self-
defense).
• A jury instruction that creates a rebuttable presumption for
an element of the crime (one that may be disputed or
overcome by additional evidence) violates Due Process
Clause if it shifts the burden of proof to the defendant.
A jury instruction that creates an irrebuttable presumption
for an element of the crime (one that cannot be disputed or
overcome by additional evidence) is a per se violation of the
Due Process Clause.

• After the prosecution closes its case in chief or after the close
of all the evidence, the defendant may move for a Judgment
of Acquittal. If the evidence is insufficient to sustain a
conviction for a crime (when a reasonable jury would not find
that each element was proven beyond a reasonable doubt), the
court MUST enter Judgment of Acquittal.
N. Appeal and Error
■■ Harmless Error Rule

• Under the Harmless Error Rule, even if evidence in violation 0 exams
MED of the defendant’s constitutional rights was improperly
admitted at trial, a guilty verdict will stand on appeal if the
0 of 24 Exams prosecution can prove that the error was harmless because
the defendant would have been convicted even without the
tainted evidence.

09 EVIDENCE
FRE = Federal Rules of Evidence
A. Probative Value MEE TIP

■■ Probative Value: Relevancy & Rule 403 Exclusions All evidence essay questions
must be answered according to
• Relevancy: To be admissible, evidence must be the Federal Rules of Evidence.
HIGH relevant. Evidence is relevant if: (1) it has any tendency

to make a fact more or less probable than it would be July 2018, Essay 5
7 of 24 Exams
without the evidence; AND (2) the fact is of consequence July 2017, Essay 5
in determining the action. Relevant evidence is admissible Feb 2016, Essay 2
unless another rule or exclusion provides otherwise. July 2014, Essay 5
• Rule 403 Exclusions: Under FRE 403, the court may exclude Feb 2013, Essay 7
relevant evidence if its probative value is substantially Feb 2012, Essay 1
outweighed by a danger of: (a) unfair prejudice; (b) Feb 2010, Essay 7
confusing the issues; (c) misleading the jury; (d)
undue delay; (e) wasting time; OR (f) being needlessly
cumulative. Evidence is unfairly prejudicial when the
evidence is (1) unnecessary, AND (2) might cause the jury to
improperly sympathize or dislike a party. As an alternative
to excluding evidence completely under Rule 403, the court
could limit the unfair prejudice to a party by limiting the
scope of evidence or examination to specific topics.
MEE TIP: When & How to Discuss Relevance

If a question asks whether certain evidence is “admissible”, be sure to
discuss Relevance. In recent essays, relevancy has been discussed briefly
for each item even though relevance wasn’t the primary rule tested. For
example, on the July 2018 MEE (Essay 5), Relevance was briefly
discussed at the beginning of Point One, Two, Three(a), and Four.
For this type of brief analysis: First, state “Evidence is relevant if it has
any tendency to make a fact more probable or less probable than it would
be without the evidence.” Then, write one sentence on why the evidence
is relevant. Remember to state the rule and analysis very briefly (unless a
greater analysis of Relevance and the Rule 403 exclusions is warranted).
B. Policy Exclusions
■■ Subsequent Remedial Measures

• Subsequent remedial measures are measures taken that Feb 2012, Essay 1
MED would have made an earlier injury or harm less likely to
occur. Under the FRE, evidence of subsequent remedial
1 of 24 Exams measures is NOT admissible to prove: (a) negligence; (b)
culpable conduct; (c) a defect in a product or design; OR
(d) a need for a warning or instruction.

09 EVIDENCE
• However, the court may admit such evidence for other

purposes, such as: (i) impeachment; or (ii) to prove a
disputed issue as to ownership, control, or feasibility of
precautionary measures.
■■ Compromise/Settlement Offers & Negotiations

• Under the FRE, offers to settle claims, offers to compromise, Feb 2012, Essay 1
MED and statements made during settlement negotiations are NOT
admissible to: (a) prove the validity or amount of a disputed
1 of 24 Exams claim (the claim must be filed or threatened); OR (b) to
impeach by a prior inconsistent statement or contradiction.
• However, the court may admit such evidence for another
purpose, such as proving bias/prejudice of a witness, negating
a contention of undue delay, or proving obstruction in a
criminal matter.
■■ Pleas & Plea Negotiations

• Under the FRE, the following are NOT admissible against a 0 exams
MED person in a subsequent civil or criminal case: (a) statements
made during plea discussions; (b) a nolo contendere
0 of 24 Exams plea (a plea where defendant neither admits or disputes a
charge); OR (c) a defendant’s guilty plea that was later
withdrawn.
■■ Offers to Pay Medical Expenses

• Under the FRE, evidence of paying or promising/offering to Feb 2012, Essay 1
MED pay medical expenses or bills is NOT admissible to prove
liability (even if there is no disputed claim). However, any
1 of 24 Exams related statements or factual admissions (other than the offer
to pay) ARE ADMISSIBLE.
■■ Liability Insurance
• Evidence of liability insurance is NOT admissible to 0 exams
MED prove culpability (that a person acted negligently or
wrongfully). However, the court may admit such evidence
0 of 24 Exams for another purpose, such as proving bias/prejudice of a
witness, or proving agency, ownership, or control.

09 EVIDENCE
C. Physical and Documentary Evidence
■■ Authentication of Evidence
• All evidence MUST be authenticated before being admitted 0 exams
MED into evidence. A party must prove that the item it seeks to
admit is actually what the party purports it to be, UNLESS
0 of 24 Exams the parties stipulate otherwise.
• Physical evidence may be authenticated through: (a) witness
testimony; OR (b) by evidence that shows it has been held in
a substantially unbroken chain of custody.
• Voice recordings may be authenticated by anyone who
has (1) heard the person speak (either first hand or
electronically); AND (2) identified the recorded person as the
speaker.
■■ Best Evidence Rule

• Under the FRE, the original writing, recording, or 0 exams
MED photograph is required in order to prove its content
UNLESS: (a) it is a reliable duplicate (a photocopy is
0 of 24 Exams allowed, but not a handwritten copy); (b) all the originals
are lost or destroyed, and not by the proponent acting in bad
faith; (c) an original cannot be obtained by any available
judicial process; (d) it was not produced after proper notice
was given to the party in control and against whom it would
be offered against; OR (e) it is not closely related to a
controlling issue.
MEE TIP
D. Character Evidence & Related Concepts On an essay question involving
character evidence: First, state
■■ Character Evidence the general rule that evidence
to prove propensity is not
• Generally, evidence of a person’s character is NOT allowed (and that evidence
HIGH admissible to show propensity (that on a particular for non-propensity purposes

is allowed). Second, apply the
occasion the person acted in conformity with the character applicable character rules for
4 of 24 Exams
trait). HOWEVER, character evidence is generally the type of case (sex crime,
admissible for any non-propensity purpose, such as when homicide, civil case) and which
party (defendant, prosecution)
character is an ultimate issue in a case (i.e. defamation). is offering the evidence. Third,
• Notwithstanding the above, character evidence may be analyze the method the offering
offered as circumstantial evidence to prove propensity in party uses to prove character (if
certain limited circumstances: relevant to the essay question).
Feb 2016, Essay 2

Feb 2012, Essay 1
Feb 2011, Essay 2
Feb 2010, Essay 7

09 EVIDENCE
o Defendant’s Character: In criminal cases, a

defendant may always introduce evidence of his
own character. The prosecution is NOT allowed to
present evidence of the defendant’s character to prove
propensity UNLESS the defendant first presents
evidence of his own character (the defendant “opens
the door”).
o Victim’s Character: Except in cases involving
rape, a defendant may offer evidence of the victim’s
character to prove the defendant’s innocence. If the
defendant presents such evidence, the prosecution
may present evidence of the: (a) victim’s good
character for the same trait; or (b) defendant’s bad
character for the same trait.
o In a Homicide Case, the prosecution may offer
evidence of the victim’s character for peacefulness
ONLY IF the defendant claims the victim was the
aggressor (self-defense).
o For Sex-Offense Cases involving alleged sexual
misconduct, evidence offered to prove a victim’s
sexual behavior or predisposition is generally NOT
admissible. However, certain exceptions to this rule
exist.
 In a civil case, the court may admit evidence
offered to prove a victim’s sexual behavior
or predisposition if its probative value
substantially outweighs the danger of (1)
harm to any victim, and (2) unfair prejudice
to any party. The court may admit evidence
of a victim’s reputation only if the victim
has placed it in controversy.
 In a criminal case, the court may admit: (a)
evidence of specific instances of a victim’s
sexual behavior if offered to prove that
the defendant was not involved in the sex
crime; (b) evidence of sexual relations
between the defendant and victim if offered
(i) by the defendant to prove consent, or (ii)
by the prosecutor for any reason; and (c)
evidence whose exclusion would violate the
defendant’s constitutional rights.
o Civil Cases: Character evidence CANNOT be
introduced in a civil case to prove propensity, unless
the exception for sex-offense cases applies (see
above).

09 EVIDENCE
• Methods of Proving Character: Under the FRE, when

character evidence is admissible, it may be proven in the
following ways: (1) on direct examination by opinion
testimony or testimony of reputation in the community; OR
(2) on cross examination of the character witness by opinion,
reputation, or specific acts. “Community” includes groups of
associates where one lives, works, or regularly socializes. If a
person’s character is an essential element of a charge, claim,
or defense, it may also be proven by specific instances of the
person’s conduct.
■■ Prior Bad Acts

• Evidence of prior bad acts (crimes, wrongs, or acts) is NOT Feb 2016, Essay 2
MED admissible to show propensity (that on a particular occasion
the person acted in conformity with a character trait).
1 of 24 Exams • However, evidence of prior bad acts may be admissible for
other relevant non-propensity purposes, such as proving
Motive, Identity, Absence of Mistake or Accident,
Intent, a Common Plan or Scheme, Opportunity, or
Preparation. In order to offer such evidence, the proponent
must show: (1) by a preponderance of the evidence that
the prior act was committed (vague references to acts are
insufficient); AND (2) that its probative value substantially
outweighs the danger of unfair prejudice.
• If relevant, a defendant’s prior acts of sexual assault or
child molestation are admissible in a case where he is
accused of similar conduct.
■■ Habit or Routine Practice

• Evidence of a person’s habit or an organization’s routine July 2018, Essay 5
HIGH practice may be admitted to prove that on a particular Feb 2010, Essay 7
occasion the party acted in accordance with the habit
2 of 24 Exams
or routine practice. The court may admit this evidence
regardless of whether it is corroborated or if there was an
eyewitness.
• A habit is a regular response to a repeated situation (i.e.
going down a stairway two stairs at a time), and usually
has four key elements: (1) specificity; (2) repetition; (3)
duration; AND (4) is semi-automatic or reflexive. Usually,
courts limit habit evidence to behaviors that are semi-
automatic or reflexive.

09 EVIDENCE
E. Impeachment
■■ Impeachment: Prior Inconsistent Statements

• Prior inconsistent statements are admissible to impeach Feb 2011, Essay 2
MED a witness’s trial testimony. A party DOES NOT need to
show or disclose the contents of the prior statement when
1 of 24 Exams examining a witness on it, but must (on request) show it or
disclose its contents to the adverse party’s attorney.
• Extrinsic evidence is admissible only if: (1) relevant
to a material issue at trial (one other than the witness’s
credibility); AND (2) a proper foundation is shown – (i) the
witness is first given an opportunity to explain or deny the
statement, and (ii) the adverse party is given an opportunity
to examine the witness about it. HOWEVER, the above
limitation on extrinsic evidence is not applicable to
statements by a party opponent.
■■ Impeachment: Prior Convictions

• Under the FRE, evidence of prior convictions may be July 2014, Essay 5
MED admitted to attack a witness’s character for truthfulness in
certain instances.
1 of 24 Exams o Prior felony or misdemeanor convictions involving
dishonesty (a dishonest act or false statement) are
ALWAYS admissible to impeach a witness (the
judge has no discretion to exclude it). All other
misdemeanors are NOT admissible to impeach.
o Felonies that DO NOT involve dishonesty are
admissible in the following cases: (1) in a civil or
criminal case where the witness is not a defendant
(subject to the FRE 403 exclusions); and (2) in a
criminal case where the witness is a defendant, but
only if the probative value outweighs its prejudicial
effect. Sex crimes are generally not considered
relevant to credibility (especially when the danger of
unfair prejudice is high), but drug convictions have
been deemed relevant.
o Notwithstanding the above, if 10-years have passed
since the later of the witness’s conviction or release
from confinement, evidence of the conviction is
admissible only if: (1) its probative value substantially
outweighs its prejudicial effect; and (2) the proponent
gives an adverse party reasonable written notice of the
intent to use it.
• Evidence of a conviction is NOT admissible if it has been
pardoned or annulled based on a finding of innocence.

09 EVIDENCE
■■ Impeachment: Specific Instances of Conduct

• A witness’s credibility may be attacked on cross-examination July 2014, Essay 5
HIGH by questioning him with specific instances of conduct Feb 2009, Essay 2
(i.e. prior bad acts) ONLY IF the conduct is probative of the
2 of 24 Exams
witness’s character for truthfulness or untruthfulness.
• However, extrinsic evidence is NEVER admissible to attack
or support such instances of a witness’s credibility. Even
if a witness lies or denies a specific instance of conduct, he
CANNOT be contradicted by extrinsic evidence, such as
documentary evidence or by testimony of another witness to
show that the witness is lying.
■■ Impeachment: Character for Truthfulness

• A witness’s credibility may be attacked or supported 0 exams
MED by: (a) reputation testimony about the witness’s character
for truthfulness or untruthfulness in the community; OR
0 of 24 Exams (b) by opinion testimony about the witness’s
character. HOWEVER, evidence of the witness’s truthful
character is admissible only after the witness’s character for
truthfulness has been attacked.
Impeachment: Ability to Observe, Remember, or Relate

■■
Accurately
• A witness’s ability to observe, remember, or relate facts Feb 2010, Essay 7
MED accurately may be attacked on impeachment. A witness may

be impeached on these issues on cross-examination or with
1 of 24 Exams
extrinsic evidence. The cross-examiner is permitted to delve
into the witness’s story to test the witness’s perceptions and
memory.
■■ Impeachment: Hearsay Declarants

• When a hearsay statement has been admitted into evidence, Feb 2008, Essay 4
MED the declarant’s credibility may be attacked (and then
supported) by any evidence that would be admissible if the
1 of 24 Exams declarant had testified as a witness. The court may admit any
evidence of the declarant’s inconsistent statement or conduct,
including statements that would otherwise be hearsay. It
DOES NOT matter when the statement occurred or whether
the declarant had an opportunity to explain or deny it. The
party against whom the statement was admitted may call the
declarant as a witness, and cross-examine the declarant on the
statement.

09 EVIDENCE
F. Presentation of Evidence
■■ Refreshing Recollection
• Under the FRE, refreshing a witness’s recollection using July 2016, Essay 2
HIGH a document is permitted when (1) the witness once had Feb 2009, Essay 2
personal knowledge of the matter, (2) but is unable to recall
2 of 24 Exams
the matter while testifying. When refreshing recollection, the
witness will be able to read the document. However, only the
opposing party may offer the document into evidence if it is
otherwise inadmissible (but it may be admitted by the offering
party if admissible under another ground, such as a recorded
recollection). The opposing party is also entitled to have the
document produced at the hearing/trial, to inspect it, and to
cross-examine the witness about it.
■■ Judicial Notice
• A court may take judicial notice of indisputable facts that 0 exams
MED are either: (a) commonly known in the community; OR (b)
readily capable of verification and cannot reasonably be
0 of 24 Exams questioned.
• The court may take judicial notice at any stage of the
proceeding. In a civil case, the court must instruct the jury to
accept the noticed fact as conclusive. In a criminal case, the
court must instruct the jury that it may or may not accept the
noticed fact as conclusive.
■■ Lay Witness Testimony & Opinions

• A lay witness is any person who gives testimony in a case July 2018, Essay 5
HIGH that is NOT called as an expert. A lay witness’s testimony Feb 2016, Essay 2
is admissible if he is competent to testify. Under the Feb 2010, Essay 7
3 of 24 Exams
FRE, competency is presumed unless the FRE provides
otherwise. Before testifying, the witness must take an oath
to tell the truth. Additionally, a witness may only testify
as to matters that he has personal knowledge. Lay witness
identification, based on the witness’ prior familiarity with a
voice, is allowed at trial.
• A lay witness may only offer an opinion if it is: (1)
rationally based on the witness’s perception; (2) helpful to
clearly understand the witness’s testimony or to determine
a fact in issue (legal conclusions are not helpful); AND
(3) not based on scientific, technical, or other specialized
knowledge.

09 EVIDENCE
■■ Expert Witness Testimony

• Expert testimony is permitted when: (1) the witness is July 2018, Essay 5
MED qualified as an expert; (2) the opinion is helpful to the
jury (if an average jury could not figure the issue out
1 of 24 Exams for themselves); (3) the witness believes in the opinion
to a reasonable degree of certainty; (4) the opinion is
supported by sufficient facts or data (i.e. documentary
evidence, personal knowledge, examination); AND (5)
the opinion is based on reliable principles and methods
that were reliably applied. Reliability is based on the
methodology’s: (1) publication and peer review; (2) error
rate; (3) testability; AND (4) whether it is generally accepted
in the field.
• Opinion on an Ultimate Issue: Generally, an opinion is
NOT objectionable just because it embraces an ultimate
issue. However, in a criminal case, an expert witness
CANNOT state an opinion about whether the defendant had
the requisite mental state that is an element of the crime or a
defense.
G. Hearsay
■■ Hearsay, Multiple Hearsay, & Non-Hearsay

• Hearsay Definition: Hearsay is (1) an out-of-court July 2018, Essay 5
HIGH statement, (2) that is offered to prove the truth of the matter July 2017, Essay 5
asserted. Hearsay is ONLY admissible if it falls under an July 2016, Essay 2
8 of 24 Exams
exception. A “statement” means a person’s oral assertion, Feb 2016, Essay 2
written assertion, or nonverbal conduct, if the person intended July 2013, Essay 4
it as an assertion. However, if the act DOES NOT assert Feb 2013, Essay 7
or communicate anything (i.e. crying), it is not deemed a Feb 2011, Essay 2
statement for hearsay purposes. Feb 2008, Essay 4
• Multiple Hearsay: When evidence contains hearsay within
hearsay (multiple or double hearsay), each level of hearsay
must fall within an exception to be admissible.
• Non-Hearsay: If an out-of-court statement is offered to
prove something other than the truth of the statement, it
is non-hearsay and is ADMISSIBLE. Common non-hearsay
statements include: (1) verbal acts of independent legal
significance; (2) statements offered to show the effect on
the listener; (3) a prior inconsistent statement used to
impeach; and (4) circumstantial evidence of the speaker’s
state of mind.

09 EVIDENCE
■■ Hearsay Exclusion: Statements by a Party Opponent

• Under the FRE, statements by a party opponent are deemed July 2018, Essay 5
HIGH to be non-hearsay. A statement by a party opponent is July 2017, Essay 5
(1) any statement offered against an opposing party, (2) July 2016, Essay 2
4 of 24 Exams
that either: (a) was made by the party in an individual or Feb 2012, Essay 1
representative capacity; (b) is adopted or believed to be true
The rule of
by the party (silence may be sufficient if a reasonable person Statements by a
would have denied the statement after hearing it); (c) was Party Opponent was
made by an person authorized to make a statement on the mentioned in the
“Note” section of Feb
subject; (d) was made by the party’s agent or employee on 2012 MEE (Essay 1,
a matter within the scope of that relationship; OR (e) was Point Two), but it was
not the primary issue
made by the party’s co-conspirator during and in furtherance tested.
of the conspiracy.
■■ Hearsay Exclusion: Prior Statements by a Witness

• Under the FRE, prior statements by a declarant-witness are Feb 2016, Essay 2
HIGH deemed to be non-hearsay if: (1) the declarant testifies; (2) Feb 2011, Essay 2
the declarant is subject to cross-examination about a prior
2 of 24 Exams
statement; AND (3) the prior statement: (a) was inconsistent
with the declarant’s testimony and was given under penalty
of perjury at a court proceeding or deposition; (b) identifies a
person as someone the declarant perceived earlier (statements
identifying a person after hearing that person’s voice typically
qualify under this rule); or (c) is consistent with the
declarant’s testimony and is offered to either (i) rebut that
the declarant is lying or (ii) to rehabilitate the declarant’s
credibility as a witness when attacked on another ground.
■■ Hearsay Exception: Present Sense Impression

• Present sense impression is an exception to the hearsay July 2017, Essay 5
HIGH rule. A present sense impression is a statement describing Feb 2016, Essay 2
an event made by the declarant: (a) while observing the July 2013, Essay 4
4 of 24 Exams
event; OR (b) immediately thereafter. A few minutes after Feb 2013, Essay 7
the event is within the period contemplated under this hearsay
exception.
■■ Hearsay Exception: Excited Utterance

• An excited utterance is an exception to the hearsay rule. An July 2017, Essay 5
HIGH excited utterance is a statement (1) relating to a startling Feb 2016, Essay 2
event or condition, (2) made while the declarant was July 2013, Essay 4
3 of 24 Exams
under the stress of excitement that the event/condition
caused. There can be a slight delay between the event and
the statement. Responding to a question usually has no effect
on the applicability of this hearsay exception, unless police
questioning was suggestive.

09 EVIDENCE
■■ Hearsay Exception: Business Records

• Business records are an exception to the hearsay rule. A July 2018, Essay 5
HIGH business record is admissible if it is: (1) a record of events, Feb 2013, Essay 7
conditions, opinions, or diagnoses; (2) kept in the regular Feb 2008, Essay 4
3 of 24 Exams
course of business; (3) made at or near the time of the
matter described; (4) made by a person with knowledge of
the matter; (5) is the regular practice of the business to make
such a record; AND (6) the opponent party does not show
that the record was made under circumstances indicating a
lack of trustworthiness. The witness who lays the business
records foundation DOES NOT need be the author of the
record or attest to its accuracy.
Hearsay Exception: Statements Made for Medical Diagnosis/

■■
Treatment
• A statement is NOT excluded by the hearsay rule when the July 2018, Essay 5
HIGH statement: (1) is made for and reasonably pertinent to July 2013, Essay 4
medical diagnosis or treatment; AND (2) describes medical Feb 2008, Essay 4
3 of 24 Exams
history or symptoms (past or present). Statements not
relevant to medical diagnosis or treatment (i.e. statements of
fault) generally DO NOT fall within this hearsay exception.
■■Hearsay Exception: Statements of Mental, Emotional, or

Physical Condition
• Statements of the declarant’s then-existing state of mind 0 exams
MED (i.e. motive, intent, or plan) OR emotional, sensory,

or physical condition are an exception to the hearsay
0 of 24 Exams
rule. However, statements of memory or belief offered
to prove a fact remembered/believed is NOT admissible
UNLESS it relates to the validity or terms of the declarant’s
will.
■■ Hearsay Exception: Dying Declaration

• A dying declaration is an exception to the hearsay rule. Under 0 exams
MED the FRE, a dying declaration MAY ONLY be used in
either: (a) a civil case; OR (b) a criminal homicide case.
0 of 24 Exams • In order to be admissible: (1) the declarant must be
unavailable; (2) the statement was made under a sense of
impending death; AND (3) the statement was about the
circumstances or cause that put the declarant in the position
of impending death.

09 EVIDENCE
• A declarant is deemed unavailable as a witness if he: (a) is

exempted from testifying due to privilege; (b) refuses to
testify despite a court order to do so; (c) testifies that he does
not remember the subject matter; (d) cannot be present to
testify because of death or illness; OR (e) is beyond the
reach of a court’s subpoena, and his attendance cannot be
procured by reasonable means.
■■ Hearsay Exception: Statement Against Interest

• A statement made against one’s own penal, proprietary, or 0 exams
MED pecuniary interest is an exception to the hearsay rule, and is
admissible when the declarant is unavailable. If a statement
0 of 24 Exams against interest is offered in a criminal case, it MUST be
supported by corroborating circumstances that clearly
indicate its trustworthiness.
• A declarant is deemed unavailable as a witness if he: (a) is
exempted from testifying due to privilege; (b) refuses to
testify despite a court order to do so; (c) testifies that he does
not remember the subject matter; (d) cannot be present to
testify because of death or illness; OR (e) is beyond the
reach of a court’s subpoena, and his attendance cannot be
procured by reasonable means.
■■ Hearsay Exception: Public Records

• Under the FRE, the following records are admissible under 0 exams
MED the government or public records hearsay exception: (1)
The Public Records
a record describing the policies and practices of a public Exception was
0 of 24 Exams office; (2) observations made by someone in accordance mentioned in the
with his duties by law (except police reports in criminal “Note” section of the
July 2016 MEE (Essay
cases); and (3) factual findings from a legally authorized 2, Point Three), but
investigation (but are only admissible in civil cases or was not the issue
tested because it was
against the government in criminal cases). HOWEVER, if inapplicable to the
the opposing party shows that the record was made under fact pattern.
circumstances indicating a lack of trustworthiness, the record
will NOT be admitted.
■■ Hearsay Exception: Past Recollection Recorded

• A past recollection recorded is a record made on a matter July 2016, Essay 2
MED the witness once knew about but now cannot recall well
enough to testify fully and accurately. A past recollection
1 of 24 Exams recorded is an exception to the hearsay rule, and is admissible
if: (1) the witness had personal knowledge of the events
at one time; (2) the writing was made or adopted by the
witness; (3) the writing was made while the events were

09 EVIDENCE
still fresh in the mind of the witness; (4) the writing is

accurate; AND (5) the witness can no longer remember
the event. If admitted, the record MAY be read into
evidence. However, the record MAY ONLY be received as
an exhibit if it is offered by an adverse party.
■■ Sixth Amendment Right to Confront Witnesses

• The Sixth Amendment’s Confrontation Clause (as applied to Feb 2016, Essay 2
HIGH the states via the Fourteenth Amendment) gives a criminal July 2013, Essay 4
defendant the right to confront witnesses against him. The
2 of 24 Exams
use of an out-of-court statement (even if it falls within a
hearsay exception or exemption) violates a defendant’s
Sixth Amendment rights when: (1) the statement is
“testimonial”; (2) the declarant is unavailable to be cross-
examined at trial; AND (3) the defendant did not have an
opportunity to cross-examine the declarant before trial. This
prohibition is subject to some exceptions, such as dying
declarations and wrongdoing by the defendant.
• Courts have held that the following statements are testimonial
in nature: (a) statements made to grand juries (and in other
similar situations); and (b) statements made to the police
whose primary purpose (when viewed objectively) is to
collect testimony to be used at a later trial. HOWEVER,
statements made to the police where the primary purpose
of the questioning was to assist the police in an ongoing
emergency are NOT considered testimonial.
• The U.S. Supreme Court set forth the following factors
to determine the existence of an ongoing emergency: (1)
the nature of the dispute; (2) the scope of the potential
harm to the victim; (3) the threat to additional identifiable
victims; (4) the existence of a more generalized threat to the
public; (5) the suspect’s type of weapon; and (6) whether
the suspect remained “at large” or had been located, but not
apprehended.
H. Privileges
Spousal Privileges: Spousal Immunity & Confidential Marital

■■
Communications
• Spousal Immunity: A witness-spouse in a valid marriage Feb 2008, Essay 4
MED may refuse to testify against his or her spouse in a criminal

case (even if the spouse is not a defendant). The witness-
1 of 24 Exams
spouse alone holds the privilege, and the privilege ends after
divorce. Spousal immunity DOES NOT apply in civil cases.

09 EVIDENCE
• Confidential Marital Communications: Communications

between a husband and wife are privileged in both civil and
criminal cases if: (1) made during the course of a valid
marriage; AND (2) were intended to be confidential. The
privilege is held by both spouses (either may assert it), and
applies even after divorce. If a spouse divulges the content
of communications to a third-party, the privilege for those
disclosed communications no longer applies.
• Both spousal immunity and the privilege for confidential
marital communications DO NOT apply: (a) in cases between
the spouses; OR (b) when a spouse commits a crime against
the other spouse or their children.
■■ Attorney-Client Privilege
• The attorney-client privilege protects confidential 0 exams
MED communications between an attorney and client from
disclosure if: (1) the communication was confidential (it was
0 of 24 Exams not knowingly made in front of third-parties); AND (2) the
communication was made to facilitate legal services. Such
communications remain privileged even after the client dies.
• The client holds the privilege and may waive it at any time,
including by disclosure to a third party. However, privilege is
NOT waived through inadvertent disclosure to a third party.
• The privilege DOES NOT apply when: (a) legal services
are sought to further a crime or fraud; (b) there is litigation
related to a breach of duty between the attorney and
client; OR (c) jointly represented clients are subsequently
involved in civil litigation against each other.
■■ Attorney Work Product Doctrine

• The work product doctrine protects ALL materials prepared 0 exams
MED by an attorney or his agents in anticipation of or during
litigation. Such materials are protected from disclosure
0 of 24 Exams UNLESS a party can show: (1) a substantial need for the
materials exist; AND (2) a substantial equivalent of the
materials cannot be obtained without undue hardship.
■■ Physician-Patient Privilege
• Most states recognize a Physician-Patient Privilege. In those July 2018, Essay 5
MED States, confidential patient communications made to a
physician for the purpose of medical diagnosis or treatment
1 of 24 Exams ARE PRIVILEGED. The patient holds the privilege (not the
physician), and only the patient can invoke or waive it. The
privilege may be waived by the patient when the medical
condition is placed “in issue” (i.e. a personal injury lawsuit
relating to the condition).

09 EVIDENCE
• Federal courts DO NOT recognize a Physician-Patient

Privilege. However, under the FRE, state law governs
privilege for civil cases regarding a claim or defense for
which state law supplies the rule of decision.
■■ Psychotherapist-Patient Privilege
• All states recognize a Psychotherapist-Patient Privilege, 0 exams
MED which protects (1) confidential patient communications,
(2) made to a psychotherapist (psychologist, psychiatrist,
0 of 24 Exams or social worker), (3) for the purpose of psychological
treatment. The patient holds the privilege (not the
psychotherapist), and only the patient can invoke or waive it.
• Exceptions to the privilege are based on state and federal
law, and include: (i) court-ordered examinations; (ii) civil
commitment proceedings to determine if hospitalization is
required; (iii) when the psychological condition is placed “in
issue” by the patient (i.e. a personal injury lawsuit relating to
the condition); and (iv) the dangerous-patient exception –
the therapist has a duty to warn when he knows (or reasonably
should know) that the patient poses a serious threat of
violence to foreseeable victims.

10 FAMILY LAW
UMDA = Uniform Marriage and Divorce Act
UPAA = Uniform Premarital Agreement Act
PKPA = Parental Kidnapping Prevention Act
UCCJEA = Uniform Child Custody Jurisdiction and Enforcement Act
A. Getting Married
■■ Marriage Requirements (State of Mind & Procedural)

• A valid marriage requires: (1) consent from both parties; (2) July 1997, Essay 4
LOW a marriage license; AND (3) that the marriage is solemnized
in a ceremony by a judicial officer or church.
1 of 49 Exams
• Courts interpret the consent requirement differently. Some
courts find consent if the parties participate in a marriage
ceremony and sought some benefits of marriage. While
other courts find consent only if the parties consented to the
obligations of marriage.
■■ Common Law Marriage

• A valid common law marriage creates marital rights and Feb 2017, Essay 3
HIGH obligations identical to a ceremonial marriage. A common July 2011, Essay 6
law marriage generally requires that the spouses: (1) live July 2006, Essay 4
5 of 49 Exams
together for a specified amount of time; (2) be legally July 1999, Essay 4
able to marry; (3) have a present agreement that the two July 1995, Essay 5
parties are married; AND (4) hold themselves out as being
married. Once formed, a common law marriage can only be
dissolved through divorce or annulment.
• Most states will honor a valid common law marriage
established in another state (even if not recognized within the
state). However, a court may refuse to honor a common law
marriage when the spouses and the marriage have limited
contacts to the state where the common law marriage was
allegedly established.
■■ Bigamous Marriage
• A person CANNOT be married to more than one person Feb 2017, Essay 3
MED at the same time. Thus, a marriage is NOT valid if entered Feb 2006, Essay 4
into when one of the parties is still married (i.e. before the July 1995, Essay 5
3 of 49 Exams dissolution of an earlier marriage).
• However, a bigamous marriage (when a person is married to
more than one person at the same time) may be saved under
either: (a) the equity doctrine; OR (b) the Uniform Marriage
and Divorce Act (UMDA).

10 FAMILY LAW
o The equity doctrine creates a strong presumption

that the most recent marriage is valid. But, this
presumption may be rebutted with strong evidence
that shows that the first marriage was not dissolved
(i.e. court documents showing no record of
divorce). If the presumption is rebutted, the second
marriage is invalid.
o Under the UMDA, an invalid marriage may be
validated upon the removal of the impediment
(i.e. an earlier marriage is terminated or a spouse
gains capacity). In such instance, the marriage
becomes valid as of the date the impediment is
removed.
B. Premarital Agreements
■■ Premarital Agreements: Enforceability

• Premarital agreements are contractual agreements that are Feb 2018, Essay 1
HIGH executed by the spouses prior to the marriage. Generally, Feb 2016, Essay 6
such agreements are enforceable UNLESS procured by fraud, July 2010, Essay 6
6 of 49 Exams
duress, or coercion. July 2008, Essay 7
• Under the Uniform Premarital Agreement Act (UPAA), a July 2003, Essay 6
premarital agreement MUST be: (1) in writing; AND (2) July 1998, Essay 5
signed by both parties. The agreement is enforceable even
without consideration.
o Under the UPAA, a premarital agreement is
NOT ENFORCEABLE if the spouse against
whom enforcement is sought proves that: (a) the
agreement was made involuntarily; OR (b) it was
unconscionable when executed and before execution
the spouse was (i) not provided fair disclosure of
the property and financial obligations of the other
spouse; (ii) did not waive disclosure in writing; and
(iii) did not have (or reasonably could have had)
knowledge of such information.
• To determine if a premarital agreement was made
voluntarily, courts look to whether there is fraud, duress, or
coercion. Factors a court will typically consider include: (1)
the presence of independent legal counsel; (2) the length of
time between the date of the agreement and the wedding; (3)
the party’s abilities to understand the agreement; and
(4) other reasons for proceeding with the marriage, such
as pregnancy or financial loss and embarrassment from
cancelling the wedding. A party’s insistence on signing the
agreement as a condition of marriage by itself DOES NOT
render the agreement involuntary.

10 FAMILY LAW
■■ Premarital Agreements: Child Custody & Support

• Provisions in a marital agreement regarding child support Feb 2018, Essay 1
HIGH or child custody are NOT binding on a court, and any Feb 2009, Essay 8
provision that adversely affects a child’s right to support is July 2008, Essay 7
6 of 49 Exams
unenforceable. If the court decides a premarital agreement July 2003, Essay 6
regarding child support is not in the best interests of the child, July 1998, Essay 5
the court may order one or both parents to pay an amount Feb 1995, Essay 2
reasonable or necessary for the child’s support.
■■ Premarital Agreements: Spousal Support

• Under the Uniform Premarital Agreement Act (UPAA), July 2010, Essay 6
MED modification or elimination of spousal support by a pre- July 1998, Essay 5
marital agreement is permitted, BUT such provisions will
2 of 49 Exams NOT be enforced if doing so would make the spouse eligible
for public support (i.e. welfare). A court may order a spouse
to provide support to the extent necessary to avoid such
eligibility.
• In some jurisdictions provisions modifying or eliminating
spousal support are invalid because they are against public
policy.
■■Premarital Agreements: Eliminating Fundamental Marital

Duties & Allocating Financial Responsibilities
• Spouses may agree to any matter (including their personal July 1997, Essay 4
LOW rights and obligations) that is NOT in violation of (a) public

policy, or (b) criminal law.
• Spouses may agree to allocate financial responsibilities,
1 of 49 Exams
BUT such agreements are NOT binding on third-parties. In
addition, agreements to limit a spouse’s support during
marriage are generally void as against public policy.
C. Being Married
■■Rights & Responsibilities of Spouses: Married Women’s

Property Acts
• Under the common law, a woman would lose all of her July 2013, Essay 3
LOW property rights upon marriage. However, ALL states have

abolished such laws. Under the Married Women’s Property
1 of 49 Exams
Act, a woman retains full rights to her property after
marriage. A married woman may manage her property as she
sees fit, and her decisions are not subject to judicial review or
control.

10 FAMILY LAW
■■ Rights & Responsibilities of Spouses: Payment for Necessities

• In most states, spouses are liable to a creditor who has July 2013, Essay 3
MED provided necessities to the other spouse (i.e. food, clothing, July 1997, Essay 4
shelter). Whether medical expenses are considered necessities
2 of 49 Exams depends on the law of the state. In the states where medical
expenses are deemed necessities, a non-debtor spouse is only
liable to the extent the debtor spouse is unable to pay.
D. Jurisdiction & Recognition of Decrees in Marital Actions
■■ Jurisdiction: Marital/Divorce & Support Actions

• State courts have subject matter jurisdiction over marital July 2014, Essay 3
HIGH actions (divorce, annulment, child custody and support, July 2009, Essay 3
spousal support). Feb 2009, Essay 8
8 of 49 Exams
• An ex parte divorce (a divorce action where only one of Feb 2007, Essay 4
the spouses is before the court) may be maintained without Feb 2003, Essay 3
personal jurisdiction over the absentee spouse, if the plaintiff- July 2001, Essay 5
spouse is a domiciliary of the rendering state. Many states Feb 2000, Essay 5
have a durational residency requirement, which specifies Feb 1996, Essay 3
a set time before a spouse can bring a divorce action. The
plaintiff-spouse’s status as a domiciliary gives the court
subject matter jurisdiction over the marital res (the marriage
itself). A divorce (whether ex parte or bilateral) validly
granted in another state is entitled to full faith and credit
in other states.
• In a matrimonial action involving economic or child
custody/support issues (i.e. alimony, property distribution,
child support and custody) the court MUST have personal
jurisdiction over the defendant-spouse, in order for the
judgment to be entitled to full faith and credit.
• A divisible divorce allows one party to terminate the
marriage in one proceeding and reserve other issues
(i.e. property division and spousal support) for a later
proceeding. A divisible divorce can occur when a court has
subject matter jurisdiction over the marriage (the res) to
maintain a divorce action, but not personal jurisdiction over
the defendant spouse to maintain an action for economic or
child custody/support issues.

10 FAMILY LAW
■■ Jurisdiction: Child Custody & Adoption Matters

• In a matrimonial action involving child custody issues, the July 2012, Essay 4
HIGH court MUST have personal jurisdiction over the defendant- July 2011, Essay 6
spouse in order for the judgment to be entitled to full faith and Feb 2003, Essay 3
5 of 49 Exams
credit. Feb 1999, Essay 5
• Under the Parental Kidnapping Prevention Act (PKPA), Feb 1996, Essay 3
a court may decide custody only if it exercises one of the
following:
o Home State Jurisdiction: When it is the child’s home
state or where the child lived with a parent for at
least 6 months immediately before the custody action
was filed.
o Significant Connection Jurisdiction: When (1) there
is no home state; AND (2) the child and at least
one parent have a significant connection with the
state. Substantial evidence in the state must exist
concerning the child’s care, protection, training, and
personal relationships.
o Emergency Jurisdiction: When the child (1) is
physically present in the state; AND (2) has been
abandoned or it’s necessary in an emergency to
protect the child.
o More Appropriate Forum Jurisdiction: When no
other state has home state, significant connection,
continuing, or emergency jurisdiction.
• The Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA) generally provides the same requirements
as the PKPA. The main difference between the two is the
prerequisite for exercising Significant Connect Jurisdiction,
in which the UCCJEA provides that a court has jurisdiction
when: (a) there is no home state; OR (b) the home state has
declined to exercise jurisdiction because the current state is
the more appropriate forum.
• Adoption Matters: In most states, the jurisdiction for a court
to enter an adoption decree is the same as required for a child
custody determination under the UCCJEA.

10 FAMILY LAW
E. Divorce, Annulment, Separation, & Dissolution
■■ Annulment
• An annulment invalidates a marriage, which treats Feb 2006, Essay 4
LOW the marriage as if it did not happen. For a court to
grant an annulment, a spouse must establish one of the
1 of 49 Exams
following grounds: (a) lack of capacity (fraud, duress,
mental incapacity); (b) bigamy (one spouse is already
married); (c) consanguinity (marriage between close family
members); OR (d) a spouse who is underage at the time of
marriage (the marriage is voidable by the underage spouse).
• An annulment by wrongfully obtaining consent to marry by
fraud exists when (1) a spouse made misrepresentations
prior to the marriage concerning an essential and vital part
of the marriage, AND (2) had the other spouse been made
aware of this, the marriage would not have been consented
to.
o Sex and procreation constitute essential and vital
parts of the marriage. However, an annulment action
for fraud DOES NOT lie if a spouse simply changes
his or her mind after the marriage. A party may be
deemed to have waived this ground for an annulment
if the spouse continues to cohabitate with the other
spouse after discovering the facts which underlie the
fraud. Courts usually do not grant annulments for
misrepresentations concerning a spouse’s character or
financial situation.
■■ Divorce Grounds
• In most states, there are five grounds for divorce: (1) cruel Feb 2010, Essay 3
MED and inhuman treatment; (2) adultery; (3) abandonment Feb 2007, Essay 4
for a set amount of time (set by statute); (4) habitual drug
2 of 49 Exams addiction or drunkenness; and (5) a “no-fault” divorce
(irretrievable breakdown).
• To procure a “no-fault” divorce, a party MUST show that (1)
the relationship between the spouses has irretrievably broken
down, (2) for set amount of time depending on the state’s
statute (i.e. at least 6 months). The only defense to a no-fault
divorce is if one of the above elements is not met.

10 FAMILY LAW
■■ Setting Aside Separation & Divorce Settlement Agreements

• A separation agreement is invalid if it: (a) is Feb 2011, Essay 5
MED unconscionable; OR (b) was the result of fraud. Feb 2010, Essay 3
• A divorce settlement agreement may be set aside if it is: (1) July 2007, Essay 3
3 of 49 Exams substantially unfair; AND (2) the result of fraud by the
spouse or mediator misconduct.
• A settlement agreement may be set aside for mediator
misconduct, including the mediator’s failure to: (a) be
impartial; (b) disclose conflicts; OR (c) fully inform the
participants about the law and their rights.
F. Division of Property
■■ Division of Property: Marital vs. Separate Property

• In all states, a divorce court may divide property without Feb 2018, Essay 1
HIGH regard to which spouse has title to the property. Most Feb 2017, Essay 3
states follow the equitable division of marital property Feb 2016, Essay 6
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approach, in which marital assets are to be divided by July 2010, Essay 6
equitable distribution among the parties to a divorce. Other July 2008, Essay 7
states apply either a community property or common law Feb 2007, Essay 4
approach. Notwithstanding the approach applied, in almost Feb 2004, Essay 3
all jurisdictions, a court CANNOT divide separate property. July 2003, Essay 6
• In a divorce, a court will divide all property owned by the two Feb 1998, Essay 5
spouses into two categories: (1) the separate property of each
spouse; and (2) marital property owned jointly between the
spouses.
• Separate property includes (a) property and assets acquired
by each individual spouse before marriage, (b) gifts and
bequests to each spouse as an individual during marriage, (c)
property which the spouses agree will be separate property,
and (d) passive appreciation of assets in any of the above
categories. Passive appreciation is appreciation in value due
merely to the passage of time, and not to the efforts of either
spouse.
• Marital property includes all other property acquired during
the marriage, regardless of whose name is on the title of the
property. In most states, marital property also includes the
active appreciation of separate property. Active appreciation
includes appreciation caused by the effort of one or both
spouses. Future expectancies (even contingent expectancies)
created during the marriage are still deemed to be marital
property, even if payment will not be received until after the
marriage ends.

10 FAMILY LAW
• Each spouse’s separate property will NOT be subject to

equitable division. A court will pool all marital property
and distribute that property between the two spouses. In
distributing marital property, the court will look at factors
such as the duration of the marriage, age of the spouses,
earning capacity, lifestyle, income of the spouses, and the
property which was deemed separate property. In addition,
the services provided by one spouse who stayed home or
put a career on hold will be considered in order to reach
an equitable division. Some states will distribute property
equally between the primary breadwinner and primary
homemaker. Generally, the fault of either party is irrelevant
to the division of marital property.
• In some states, property acquired is no longer marital property
once the spouses are permanently separated. However,
other states require a final divorce decree to end the accrual
of marital property.
■■ Division of Property: Professional License or Degree

• In most states professional degrees or licenses are Feb 2010, Essay 3
MED NOT deemed marital property subject to equitable Feb 1995, Essay 2
division. However, these states will generally require
2 of 49 Exams reimbursement for any support provided by a spouse that
contributed to the other spouse’s education or licensing.
• A minority of states consider professional degrees or licenses
to be marital property subject to division at divorce. In these
states, the value of the degree is based on potential future
earnings.
■■ Division of Property: Marital & Economic Fault

• In most states, the marital fault of either party (i.e. adultery) Feb 2010, Essay 3
MED is irrelevant to distributions of marital property. However, Feb 2004, Essay 3
most courts will consider the economic misconduct
2 of 49 Exams (i.e. dissipation of assets) of a spouse when dividing property,
even in a “no fault” jurisdiction. Dissipation of assets occurs
when, during the breakdown of the marriage, a spouse uses
marital property for the sole benefit of himself for a purpose
unrelated to the marriage.
■■ Division of Property: No Termination Upon Death

• A court ordered award for division of property DOES Feb 1997, Essay 7
LOW NOT terminate upon the death of the obligor spouse. Such
obligations may be enforced against the deceased spouse’s
1 of 49 Exams
estate.

10 FAMILY LAW
■■ Modification of a Property Division Award

• A property division award CANNOT be modified, unless July 2014, Essay 3
MED exceptional circumstances exist (i.e. fraud or duress). A Feb 2011, Essay 5
property distribution award (including the valuation of assets)
2 of 49 Exams is evaluated at the time of divorce, and a court is unlikely to
reconsider that evaluation.
G. Spousal & Child Support
■■Spousal Support: When Support May be Awarded,

Amount, & Termination
• Upon divorce, one spouse may be court ordered to provide July 2010, Essay 6
HIGH spousal support (also referred to as maintenance or alimony) Feb 2010, Essay 3
to maintain the former spouse’s standard of living and limit July 2007, Essay 3
4 of 49 Exams
any unfair economic effects of a divorce. Feb 1998, Essay 5
• Under the Uniform Marriage and Divorce Act (UMDA),
the court may order maintenance (spousal support) for
either spouse only if it finds that the spouse seeking
maintenance: (1) lacks sufficient property to provide for her/
his reasonable needs; AND (2) is either unable to support
herself/himself through employment or is the custodian of
a child whose condition or circumstances make it so that the
custodian cannot seek employment.
• Determining the Amount of Support: Relevant factors a
court will consider when determining the amount of spousal
support include: (1) the financial resources of the party
seeking support; (2) the time necessary for the spouse
seeking support to obtain an appropriate job (include time for
education or training); (3) the standard of living established
during the marriage; (4) the duration of the marriage; (5)
the age and the physical and emotional condition of the
spouse seeking support; and (6) the ability of the spouse
paying support to meet their needs while supporting the other
spouse. In addition to these factors, some states will also
consider marital misconduct or fault.
• Termination: Spousal support obligations terminate upon the
death of the obligor spouse.

10 FAMILY LAW
■■ Spousal Support: Reinstatement of Prior Award

• Most courts will NOT reinstate prior alimony awards Feb 2006, Essay 4
LOW that were terminated by an annulled marriage under
the “no-revival” approach, especially if the person
1 of 49 Exams
seeking reinstatement was the one who obtained the
annulment. However, some courts apply the “logic of
annulment” doctrine, and will order reinstatement of prior
alimony awards.
■■ Child Support
• Child Support Guidelines: A biological parent is legally Feb 2009, Essay 8
HIGH responsible for a child whether or not the child was Feb 2008, Essay 3
intended or wanted by the parent. Federal law requires that July 1999, Essay 4
5 of 49 Exams
states provide child support guidelines that: (1) take into Feb 1998, Essay 5
consideration all earnings and income of the non-custodial Feb 1997, Essay 7
parent; AND (2) are based on specific descriptive and
numeric criteria to compute the support obligation.
• College or Educational Expenses: Some states require
support for continuing education. In such states, a child may
lose the right to payments if the child DOES NOT follow the
obligor parent’s reasonable instructions.
• Termination Upon Death: In most states, an obligation to
pay child support terminates upon the death of the obligor. In
those states, however, the deceased’s estate remains liable
for past due payments. In some states, an obligation to pay
child support DOES NOT terminate, and allows access to the
deceased’s estate to fulfill future payments.
■■ Modification & Enforcement of Child/Spousal Support Orders

• In most states, a child or spousal support order CAN July 2014, Essay 3
HIGH ONLY be modified when there is a substantial change in Feb 2011, Essay 5
circumstances of either the payor or payee spouse making the July 2009, Essay 3
7 of 49 Exams
prior order unreasonable. Feb 2008, Essay 3
• Under the Uniform Marriage and Divorce Act (UMDA), Feb 2005, Essay 4
modification of child/spousal support orders is more July 2001, Essay 5
stringent, and is allowed only upon a showing of changed July 1996, Essay 5
circumstances so substantial and continuing as to make the
terms unconscionable.
• Some courts will NOT permit a modification if the change
was anticipated or voluntary, while other courts will permit
modification when the obligor parent acted in good faith.
• Courts CANNOT retroactively modify support
orders. However, a court may prospectively modify or
eliminate child support payments if that parent becomes the
custodial parent.

10 FAMILY LAW
• Under the Uniform Interstate Family Support Act (UIFSA),

states must give full faith and credit to child/spousal support
orders of other states. Courts CANNOT modify child support
orders of other states UNLESS: (1) the court has jurisdiction
to issue an order; AND (2) either (a) all of the parties do not
reside in the issuing state (obligor, obligee, and child) or (b)
each party has consented in writing to jurisdiction in another
state. An issuing state has continuing, exclusive jurisdiction
over a controlling order if: (a) the state is the residence of
one of the parties (obligor, obligee, or child); OR (b) all
parties consent in a record or in open court that the state may
continue to exercise jurisdiction.
H. Child Custody & Visitation
■■ Child Custody: Best Interests of the Child Standard

• Courts determine child custody under the Best Interests Feb 2018, Essay 1
HIGH of the Child Standard. This is a broad standard that gives July 2013, Essay 3
great discretion to the court. In evaluating the best interests July 2012, Essay 4
8 of 49 Exams
of the child, a court will evaluate the following: (1) the Feb 2009, Essay 8
wishes of the parents; (2) the wishes of the child (for older July 2004, Essay 3
children); (3) the age, financial well-being, and mental/ July 2002, Essay 5
physical health of each parent; (4) the existence of new Feb 2001, Essay 4
individuals in each parent’s life and who that person is; (5) Feb 1996, Essay 3
the effect custody will have on the child’s ability to foster
relationships with extended family; (6) history of domestic
violence by either party; (7) stability of child’s home and
school environments; and (8) anything else that the court
believes will be equitable to evaluate.
• A court CANNOT award or deprive custody based on
a parent’s lifestyle, values, or religious beliefs, but may
take into account whether such behavior or conduct would
endanger the child. A parent’s sexual behavior, by itself,
CANNOT be used to deny custody.
■■ Child Custody: Parent vs. Third-Party Custody

• When determining child custody between a parent and a July 2012, Essay 4
MED third-party, it is presumed that custody with the parent is July 2002, Essay 5
in the best interests of the child. Some states permit this Feb 2001, Essay 4
3 of 49 Exams presumption to be rebutted by showing that custody with
the parent would be detrimental to the child. Since parental
rights are constitutionally protected, courts MUST give great
weight to a parent’s determination of what is best for the
child.

10 FAMILY LAW
• Courts will also give substantial weight to a mature child’s

wishes when resolving a child custody dispute between a
parent and a third-party. However, that child’s wishes are
NOT determinative, and the court may disregard such wishes
and grant custody in favor of a natural parent.
• Usually, a court will only grant custody to a third-party
upon the showing of special circumstances (abuse, neglect,
abandonment, mentally incompetent, or where the parent
surrendered the child).
■■ Child Custody: Joint Custody

• Joint custody is usually an option only for parents who can July 2004, Essay 3
LOW cooperate, since it could be harmful to the child if the parents
are hostile. Most courts will NOT impose joint custody on
1 of 49 Exams
hostile or unwilling parents. Even in states that do permit
the imposition of joint custody over a parent’s objection, a
court CANNOT order joint custody unless it finds that this
arrangement is in the child’s best interests.
■■ Child Custody: Presumption of Parental Fitness

• Parents (biological or legal) are presumed that they are fit July 2002, Essay 5
LOW to care for their children. However, this presumption may
be rebutted by clear and convincing evidence of conduct
1 of 49 Exams
endangering the child (i.e. abuse, neglect, abandonment,
mental incompetence).
■■ Visitation: Parental Visitation Rights

• A parent not granted custody of the child is ENTITLED to Feb 2009, Essay 8
LOW reasonable visitation rights. The court cannot prevent or
reduce visitation UNLESS the court finds (after a hearing)
1 of 49 Exams
that visitation would seriously endanger the child’s physical,
mental, moral, or emotional health. The court may modify
an order granting or denying visitation rights whenever the
modification would serve the best interests of the child.
• The payment of child support is independent from the right to
visitation, such that a custodial parent’s interference with the
other parent’s visitation rights DOES NOT suspend the other
parent’s obligation to pay child support.
■■ Visitation: Third-Party Visitation Rights

• Parental rights are constitutionally protected. Thus, courts Feb 2017, Essay 3
MED MUST give great weight to a parent’s determination of what July 2005, Essay 4
is best for the child. Feb 2001, Essay 4
3 of 49 Exams

10 FAMILY LAW
• Notwithstanding, some states permit third-party visitation

with those who have a substantial relationship with the child
(i.e. a de facto parent) when it’s in the best interests of the
child. HOWEVER, a third-party must: (1) overcome the
presumption that the parent is acting in the best interests of the
child; AND (2) show that denial of visitation poses a risk of
harm to the child. Once the parental presumption is overcome,
a court will then consider whether visitation with the third-
party is in the best interests of the child.
• The de facto parent is a person who has provided a child with
daily parental concern, affection, and care over substantial
time.
■■ Child Custody: Relocation of the Custodial Parent & Child

• A court will permit a custodial parent to relocate with the child Feb 2005, Essay 4
LOW if the relocation is: (1) made in good faith; AND (2) is in the
best interests of the child. The court will balance the effects
1 of 49 Exams
on visitation with the benefits of the relocation.
■■ Modification of a Child Custody Order

• A child custody determination may be modified only if there July 2009, Essay 3
MED is a substantial change in circumstances. Some states Feb 2005, Essay 4
prevent modification within a certain time of the initial July 2004, Essay 3
3 of 49 Exams determination. In other states, a non-marital cohabitant is a
change sufficient for a modification. It is important to note that
custody determinations CANNOT be retroactively modified.
• A state court that had jurisdiction over the original child
custody order retains continuous and exclusive jurisdiction to
make modifications. However, another state court may be able
to modify a child custody order in certain limited situations
under the Parental Kidnapping Prevention Act (PKPA) or
Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA).
o Under the PKPA, a court may modify a custody
or visitation determination made by another state
only if: (1) it had jurisdiction to make an initial
determination; AND (2) the issuing state either (a) no
longer has jurisdiction, or (b) has declined to exercise
jurisdiction.
o Under the UCCJEA, a court may modify an order
from another state only if: (1) it had jurisdiction to
issue an initial order; AND (2) either (a) the issuing
state determines it no longer has jurisdiction or that
the current state is more appropriate or (b) the court
determines that all parties do not reside in the issuing
state.

10 FAMILY LAW
I. Rights of Unmarried Cohabitants
■■ Division of Property of Unmarried Cohabitants

• The party who has title to the property retains sole ownership July 1999, Essay 4
MED of the property UNLESS the other party claims ownership Feb 1997, Essay 2
under a contract theory or equitable remedy theory (resulting
2 of 49 Exams trust, constructive trust, quantum meruit). Either party may
bring an action to partition jointly held property.
• A resulting trust is available if property is titled in one party’s
name, but another party gave money to acquire the property
with the intent to have ownership of it. A constructive trust
is available if one party obtained title to property through
wrongful conduct. Quantum meruit is available if one
party was unjustly enriched by the services provided by
another. The party who was unjustly enriched must pay the
fair market value for the services provided.
■■ Agreements Between Unmarried Cohabitants

• An agreement for the division of property between Feb 2017, Essay 3
HIGH unmarried cohabitants may be express or implied. An July 2006, Essay 4
express agreement (oral or written) between unmarried July 1999, Essay 4
4 of 49 Exams
cohabitants is enforceable as long as it was not based on Feb 1997, Essay 2
sexual relations. An implied agreement is also enforceable,
but is generally more difficult to prove. A court may find an
implied-in-fact contract regarding the division of property if
the parties comingled funds during the relationship.
■■ Putative Spouse Doctrine

• In some states, when a marriage is invalid due to some legal Feb 2017, Essay 3
LOW infirmity, an innocent party may be entitled to relief under
the putative spouse doctrine. The Putative Spouse Doctrine
1 of 49 Exams
protects the financial and property interests of a person who
(1) entered into a void or voidable marriage, (2) believing in
good faith that the marriage was valid. A determination of
good faith is tested by an objective standard, and must rest
on facts that would cause a reasonable person to have a good
faith belief in the existence of a lawful marriage.
• If the doctrine applies, the putative spouse is entitled to the
same marital property rights as a legal spouse (such as
equitable property division and spousal support).

10 FAMILY LAW
J. Unmarried Parents & Their Children
■■Establishing Paternity, Presumption of Legitimacy, & Paternity

by Estoppel
• Paternity may be established by any of the following Feb 2011, Essay 5
HIGH methods: (1) a birth certificate; (2) legal presumptions; (3) July 2005, Essay 4
when unmarried parents voluntarily sign an acknowledgement July 2002, Essay 5
4 of 49 Exams
of paternity; (4) an unmarried biological father’s successful Feb 1995, Essay 2
challenge of a presumption; (5) a paternity suit; and (6)
the party’s actions by assuming parental responsibilities,
establishing a substantial relationship, and holding the child
out as his own.
• In most jurisdictions, there is a presumption that a child born
during marriage is considered a marital child and is the
child of the husband. This presumption can be rebutted by
proof of the husband’s infertility or his lack of access to his
wife.
• In determining parentage, a court will also consider the
best interests of the child. Some states have established
procedures for paternity disestablishment by which a husband
or unmarried man who was erroneously identified as the
father can eliminate child support orders. Most states require
the challenge to be filed within two years.
• Under the equitable Doctrine of Paternity by Estoppel if a
man who is not the biological father has (1) held himself out
as the father, and (2) paid support, then he will be estopped
from denying paternity.
• If paternity is established, that person will be responsible for
child support obligations.
■■ Unmarried Biological Father’s Rights
• An unmarried biological father’s right to a relationship with July 2005, Essay 4
MED his child is protected under the Due Process Clause only if Feb 1999, Essay 5
the father: (1) has assumed parental responsibilities; AND Feb 1997, Essay 2
3 of 49 Exams (2) has established a substantial parental-child relationship
(the stronger the relationship, the stronger the constitutional
protections). If the child has a presumed father, most states
require unmarried fathers to challenge paternity within two
years.
• An unmarried father is entitled to notice of an adoption
if: (a) his parental rights are protected under the Due
Process Clause; OR (b) he acted consistent with a state’s
guidelines for the putative father registry. A court is likely
to hold that an unmarried father is NOT entitled to notice if
none of the above standards is not met, even if the father was
unaware of the child’s existence until after the fact.

10 FAMILY LAW
K. Parent, Child, & State
■■ Right to Control the Child’s Upbringing

• A parent’s right to control their child’s upbringing and July 2013, Essay 3
MED education is a fundamental right and courts will NOT July 2000, Essay 5
interfere with the exercise of this right (especially if both
2 of 49 Exams parents live together), UNLESS the well-being of the child is
endangered. For this reason, courts will not decide disputes
between parents of intact families, as they are private matters.
• Similarly, state agencies CANNOT interfere with family
decisions UNLESS the well-being of a child is endangered
(i.e. lifesaving medical treatment is needed).
• Education: A parent may provide a religious education
or deny a child’s education because of religious
beliefs. However, the U.S. Supreme Court has held that ALL
children must at least attend school through the eighth grade,
but parents have the choice where their children will attend
school.
• Medical Care: Parental consent is required before medical
care may be performed on a minor. Exceptions may be
made in emergency circumstances or where prescribed by
statute. When a parent refuses emergency medical care
based on religious grounds, some states will honor the
refusal and others will not. Those states that DO NOT honor
the parent’s views may hold the parents liable for child
endangerment. Courts will consider whether strong facts in
favor of treatment exist and will weigh the risks and benefits
of the treatment.
■■ Intra-Family Lawsuits & Immunities
• Under common law, spouses could not sue each other Feb 2002, Essay 5
LOW (interspousal immunity), and parent-child suits were not
permitted (parents were immune). However, today most
1 of 49 Exams
states have abolished intra-family immunity, and permit
lawsuits between spouses and between a parent and child.
■■ Loss of Consortium Claims

• A claim for loss of consortium is generally only available to Feb 2002, Essay 5
LOW married couples, and is intended to compensate a spouse for
loss of the other spouse’s companionship, sexual relations,
1 of 49 Exams
and affection.

10 FAMILY LAW
L. Adoption
■■ Adoption & Parental Consent

• Adoption severs the biological parent’s legal rights and July 2011, Essay 6
HIGH responsibilities for the child. In most states, biological Feb 2008, Essay 3
parents lose the right to visit their child after adoption. Some July 2006, Essay 4
6 of 49 Exams
states do not terminate a child’s inheritance rights if the child Feb 2001, Essay 4
was adopted by a blood relative. Feb 1999, Essay 5
• Generally, the consent of BOTH parents is required to place Feb 1997, Essay 2
a child up for adoption. However, where the child is non-
marital, consent of the biological father is only required
when he has assumed parental responsibility.
o In determining if a father has assumed parental
responsibility, courts will analyze such factors as
the extent of his interaction with the mother during
pregnancy, whether the father paid for medical
expenses incurred during pregnancy, and his
willingness and ability to assume custody and care
for the child (as opposed to merely protesting the
adoption).
o Consent of a parent is NOT required when the
parent: (a) has surrendered the child to an adoption
agency; (b) is incompetent due to mental illness; (c)
has abandoned the child (usually for at least one
year) without contact; OR (d) has been found to have
permanently neglected the child.
• A parent’s consent to an adoption CANNOT be withdrawn
after the adoption decree is entered with the court. However,
prior to an adoption decree, consent may be withdrawn if it
is in the best interests of the child (courts will consider the
child’s needs and the parent’s characteristics, motives, and
ability to support the child).
■■ Adoption: Visitation for Biological Parents

• Most states will NOT allow visitation for biological parents Feb 1997, Essay 2
LOW because it would interfere with the adoptive parents’ rights
and conflict with the purpose of adoption. However, some
1 of 49 Exams
courts will permit visitation if it is in the best interests of the
child.

10 FAMILY LAW
M. Alternatives to Adoption
■■ Artificial Insemination & In Vitro Fertilization

• Artificial Insemination is the introduction of sperm into a July 2002, Essay 5
MED female’s uterus for the purpose of achieving a pregnancy by Feb 1995, Essay 2
means other than sexual intercourse. In Vitro Fertilization is
2 of 49 Exams the process of fertilization by combining an egg and sperm in
a laboratory, and transferring it to the female’s uterus.
• Under the Uniform Parentage Act, a husband is presumptively
the father of a child born through artificial insemination or in
vitro fertilization if: (1) he consented in writing; AND (2) a
medical doctor performed the procedure.
• In such instance, he will be deemed the legal father of the
child, even if he is not the biological father. Generally,
the sperm donor’s rights are severed (he has no parental
rights). If the husband is the sperm donor, he is both the
biological father and legal father of the child.
■■ Surrogacy Arrangements
• Surrogacy is when a woman agrees to carry a pregnancy Feb 1995, Essay 2
LOW for another person or couple, who will become the newborn
child’s parent(s) after birth.
1 of 49 Exams
• In the states that allow surrogacy agreements, a court will
only enforce the agreement under certain conditions, such
as prior approval by the court. In some states, surrogacy
contracts are not permitted, as against public policy. In these
states, the biological parent may enforce his or her parental
rights over the child.

11 REAL PROPERTY
Grantor = the person selling/transferring the property
Grantee = the person buying/receiving the property
MEE TIP
A. Present Estates & Future Estates
On the exam, be sure to connect
the present estate (defeasible
■■ Present Estates: Fee Simple Absolute & Fee Tail fees, life estate) to the applicable
future interest (reverter, re-entry,
• A fee simple absolute is a conveyance of absolute ownership remainder). All present estates
MED of real property (without any conditions placed upon it). The are connected to a future interest
property is freely devisable (leave it in a will), descendible upon the occurrence of the
condition specified (except for
0 of 24 Exams (passed to descendants), and alienable (may be transferred present estates that provide for
during the grantor’s lifetime). absolute ownership).
• A fee tail is a conveyance of real property to a person
and their heirs. Most jurisdictions have abolished fee tail 0 exams
ownership, and treat such conveyances as a fee simple
absolute.
■■ Present Estates: Defeasible Fees

• A fee simple defeasible is a conveyance of property that has July 2010, Essay 5
MED conditions placed on it. It is created when the grantor uses
express conditional language to indicate that the conveyance
1 of 24 Exams will be terminated upon the occurrence (or non-occurrence)
of an event or condition. A fee simple defeasible gives the
grantee a present possessory interest in the property, BUT
reserves a future interest in the property in favor of either
the grantor or a third party.
• Three types of fee simple defeasibles exist: (1) fee simple
subject to a condition subsequent (reserves a future interest
in the grantor); (2) fee simple determinable (reserves a
future interest in the grantor); AND (3) fee simple subject
to executory limitation (reserves a future interest in a third-
party).
o Fee Simple Determinable: A fee simple determinable
is a conditional conveyance that allows the grantor
to retain a possibility of reverter. It is created
when the grantor uses words of duration (i.e. so
long as, during, while, the property shall revert) in
the conveyance to indicate that the interest being
conveyed will automatically terminate if a specified
condition occurs.
o Fee Simple on Condition Subsequent: A fee simple
subject to a condition subsequent is a conditional
conveyance that allows the grantor to retain a right of
re-entry. It is created when the conveyance expressly
states that the interest being conveyed is subject to
the grantor’s right of re-entry if a specified condition
occurs. If the condition occurs, the grantee’s present

11 REAL PROPERTY
interest in the property will be lost ONLY IF the

grantor affirmatively exercises his right of re-entry
and re-takes possession of the land.
o Fee Simple Subject to Executory Interest: A fee
simple subject to an executory interest is a conditional
conveyance of real property, in which a third-
party (not the grantor or his heirs) will be entitled
to the property upon the occurrence of a specified
condition. It is created when the grantor uses words
such as “To person X, so long as (or “but if”) … to
person Y.”
• If the deed language is ambiguous as to which defeasible fee
is meant, courts construe the language in accordance with
the grantor’s intentions. If it’s unclear whether a fee simple
determinable or a fee simple subject to condition subsequent
is intended, courts typically favor a fee simple subject to
condition subsequent.
■■ Present Estates: Life Estate

• A life estate is a conveyance of real property where a 0 exams
MED specified life-tenant is entitled to possession of the property
during their lifetime, and upon the life-tenant’s death the
0 of 24 Exams property transfers outright to another party (as specified in
the deed). The person who takes the property after the life-
tenant’s death is known as the remainderman.
• The life-tenant is responsible for ordinary expenses and taxes
relating to the property during their lifetime, and cannot
commit waste (causing the property to decrease in value).
■■ Present Estates: Statute of Limitations

• An interest in a fee simple determinable or fee simple July 2010, Essay 5
MED subject to condition subsequent lasts through the applicable
statute of limitations period for that interest. An action
1 of 24 Exams for possession can be brought anytime within the statute of
limitations (usually a set number of years after the cause of
action accrues).
■■ Future Estates: Reverter & the Right of Re-Entry

• Reverter and the right of re-entry is connected to the July 2010, Essay 5
MED occurrence of a condition for a defeasible fee conveyance.
• A possibility of reverter creates a future interest of
1 of 24 Exams possession in the grantor if a specified condition occurs. If
such condition occurs, the present possessory interest in the
grantee will automatically terminate and vest in the grantor.

11 REAL PROPERTY
• A right of re-entry (also known as a power of termination)

creates a future interest in the grantor, wherein the grantor
has the right to re-enter and take the property if a specified
condition occurs. The present interest in the property is
lost ONLY IF the grantor exercises that right (the present
possessory interest does not automatically terminate upon the
occurrence of the specified condition).
■■ Future Estates: Vested and Contingent Remainders

• A vested remainder is a future interest in land that is given to July 2010, Essay 5
MED an identifiable person with no conditions.
• A contingent remainder is a future interest in land that is
1 of 24 Exams conditioned upon the occurrence or non-occurrence of a
specified event.
• In most jurisdictions, a future remainder interest is devisable,
and passes to that person’s heirs. When the remainder is
conditioned on survivorship (i.e. “my surviving or living
children”), the majority view is that the person holding the
remainder interest MUST survive the life tenant to be entitled
to the interest, while the minority view is that the person need
only to survive the testator.
B. Co-Tenancy
■■ Tenancy in Common
• Tenancy in common is the default estate created by a Feb 2009, Essay 4
MED conveyance or bequest of real property to two or more
people, UNLESS: (a) there is express language stating
1 of 24 Exams that the parties have a survivorship right creating a joint
tenancy; OR (b) if the conveyance of real property is stated
“as husband and wife” creating a tenancy by the entirety
(some states create a tenancy by the entirety by default if the
conveyance is to a married couple). To create a tenancy in
common, the grantor need not use explicit language.
• Each tenant in common owns an undivided interest in the
property, and has the right to use and enjoy the entire
property. There are NO survivorship rights with a tenancy in
common, and upon death the tenant’s interest passes to their
estate.

11 REAL PROPERTY
■■ Joint Tenancy: Formation

• A conveyance of real property to two or more persons creates Feb 2009, Essay 4
MED a joint tenancy when the four unities are present: (1) unity
of time (all interests were received at the same time); (2)
1 of 24 Exams unity of title (all interests were acquired by the same
instrument); (3) unity of interest (all ownership interests are
equal); AND (4) unity of possession (all interests have equal
rights of possession).
• There MUST be clear express intent to create a joint
tenancy, which may be satisfied by including such terms
as “joint tenants”, “right of survivorship”, “joint tenants
with right of survivorship”, or even “jointly” (if intent is
proven). A right of survivorship means that when one joint
tenant dies his interest in the land is automatically transferred
to the other joint tenant(s).
■■ Joint Tenancy: Severance

• Generally, when one joint tenant unilaterally transfers his Feb 2009, Essay 4
MED ownership interest in the real property, the joint tenancy is
severed and the tenants will then hold the property as tenants
1 of 24 Exams in common.
• When a joint tenant conveys his interest in a joint tenancy
to a third-party, that party takes the property as a tenant in
common. If there are only two joint tenants, the joint tenancy
is severed. However, if there are more than two joint tenants,
the joint tenancy remains, but only among the other joint
tenants.
• When a joint tenant takes out a mortgage on her interest,
the mortgage’s effect on the joint tenancy will depend on
the jurisdiction. In a lien theory jurisdiction, the mortgage
will NOT sever the joint tenancy. However, in a title theory
jurisdiction, the mortgage will sever the joint tenancy, and the
tenants will then hold the property as tenants in common.
Co-Tenant’s Entitlement to Rent or Reimbursement for

■■
Repairs/Improvements
• Rent from Co-Tenant: An out-of-possession co-tenant 0 exams
MED DOES NOT have the right to receive rent from the in-
possession co-tenant, UNLESS the in-possession co-tenant
0 of 24 Exams
wrongfully ousted the out-of-possession co-tenant from the
property. When one co-tenant voluntarily quits (or simply
does not use) the property, the other co-tenant is not liable
for rent for his use of the entire property. Thus, a co-tenant
CANNOT collect rents from another co-tenant who is in

11 REAL PROPERTY
exclusive possession of the premises, unless: (a) there is an

agreement to the contrary; OR (b) the co-tenant seeking
rent was wrongfully ousted.
• Rent from a Third-Party: If an in-possession co-tenant rents
the property to a third-party, the out-of-possession co-tenant
is entitled to his fair share of the rent paid by the third-party.
• Reimbursement for Repairs: A co-tenant is entitled to
reimbursement for the costs of necessary repairs that the
co-tenant paid for, UNLESS there has been a wrongful
ouster. The amount of reimbursement is determined by the
percentage share each co-tenant owns in the property (i.e. if a
co-tenant owns a 50% share then the co-tenant is obligated to
pay 50% of the repair costs).
• Reimbursement for Improvements: A co-tenant who
makes improvements to the property is NOT entitled to
reimbursement from the other co-tenant(s), UNLESS
there is a separate agreement to the contrary. At the end
of the co-tenancy (i.e. a partition or sale of the property),
the improving co-tenant bears all the downside risk of the
improvements, but also has all of the upside gain. Thus, if the
property appreciated because of the improvements, only the
improving co-tenant is entitled to that increase in value.
C. Landlord & Tenant Issues
■■ Types of Leasehold Interests

• A lease provides the tenant with a present possessory interest Feb 2013, Essay 1
HIGH in the real property (subject to any terms and conditions July 2008, Essay 4
agreed to), and gives the landlord a future interest in the
2 of 24 Exams
property. In most states, the statute of frauds requires a lease
of more than one year to be writing.
• Three types of leaseholds exist: (1) tenancy for years; (2)
MEE TIP
periodic tenancy; AND (3) tenancy at will. On the exam, apply the type
o A Tenancy for Years lasts for a fixed period of time of tenancy based on landlord-
tenant relationship described in
(there is a specified beginning and end date), as agreed the essay question.
by the landlord and tenant. The lease automatically
terminates after the fixed period. Normally, a tenant
CANNOT terminate a lease prior to the end of the
term, unless constructive eviction or another exception
applies.

11 REAL PROPERTY
o A Periodic Tenancy continues for a specific period

(i.e. weekly or monthly) until it is terminated by
proper notice from either party. A periodic tenancy
may be created: (a) expressly by agreement; (b)
by implication if rent is paid at specific periods
(i.e. every week or month); OR (c) by law when
a tenant-for-years remains after termination of the
period or when a lease agreement is invalid.
 A periodic tenancy can only be terminated
(1) at the end of a natural lease period,
AND (2) requires written notice at least
a full period in advance. For example, a
periodic month-to-month tenancy requires
a one-month notice of termination. An
exception exists for a periodic year-to-year
tenancy, in that only 6-months’ notice is
required.
o A Tenancy at Will continues until either party
terminates it, and is usually created by an express
agreement. In most states termination of a tenancy at
will requires giving: (1) notice of termination; AND
(2) a reasonable time to quit the premises. In a
minority of states, termination does not require notice
to the tenant.
■■ Tenant Duties: Duty to Pay Rent

• A tenant’s duty to pay rent runs with the land. If a tenant 0 exams
MED remains on the property and does not pay rent, the landlord
may: (a) initiate eviction proceedings; OR (b) allow the
0 of 24 Exams tenant to remain on the property and sue for damages. If
the tenant abandons the property and does not pay rent, the
landlord may be required to take reasonable steps to mitigate
his losses (depending on the applicable state law).
Landlord’s Rights and Liabilities Concerning a Hold-Over

■■
Tenant
• A landlord has two options if a tenant holds-over (when the 0 exams
MED tenant retains possession after the expiration of the lease):

(a) he may evict the tenant; OR (b) he may hold the tenant
0 of 24 Exams
over.

11 REAL PROPERTY
• By holding the tenant over, an implied month-to-month

tenancy is created with terms identical to the original lease
terms. Although, if the tenant was informed by the landlord
before the end of the lease term, that renewal of the lease
would involve higher rent, the higher rent would apply. At
common law, the duration of the implied periodic tenancy
was equal to that of the original tenancy. Due to the potential
harshness of this rule, most states have modified the common
law, making all holdover tenancies implied month-to-month
tenancies (unless otherwise agreed by the parties).
■■ Landlord Duties: Implied Warranty of Habitability

• A warranty of habitability is implied in every residential Feb 2013, Essay 1
MED lease. The implied warranty of habitability requires that the
landlord provide a place to live (apartment, home) that is
1 of 24 Exams habitable. A property is deemed habitable if it’s reasonably
suitable for human needs (the local housing or public safety
code must be considered for specifics).
o Some courts impose the implied warranty of
habitability in commercial leases in limited
circumstances.
• Upon a breach of the warranty of habitability, the tenant
may: (a) move out and terminate the lease; (b) withhold
or reduce the rent; (c) repair the issue and deduct the cost
from the rent; OR (d) remain on the premises and sue for
damages.
■■ Landlord Duties: Constructive Eviction

• Every lease includes an implied covenant of quiet Feb 2013, Essay 1
MED enjoyment, which prevents a landlord from interfering
with the tenant’s quiet enjoyment and possession of
1 of 24 Exams the property. This covenant is breached if the tenant is
constructively evicted.
• Constructive eviction occurs when: (1) the landlord
breached a duty to the tenant; (2) the landlord’s breach
caused a loss of the substantial use and enjoyment of the
premises; (3) the tenant gave the landlord notice of the
condition; (4) the landlord failed to remedy the condition
within a reasonable time after notice was given; AND (5)
the tenant vacated the premises.
• Upon being constructively evicted, the tenant may terminate
the lease and seek damages.

11 REAL PROPERTY
• In residential leases, the landlord has a duty to repair

common areas. The landlord also has a duty to warn the
tenant of any latent defects that create a risk of serious harm
that the landlord knows of (or should know of).
• In commercial leases, landlords generally DO NOT have a
duty to repair, but public authorities may require the landlord
to do so in certain instances.
■■ Landlord Duties: Duty to Mitigate Damages

• At common law, a landlord had NO duty to mitigate Feb 2017, Essay 6
HIGH his damages. However, most states now impose a duty Feb 2013, Essay 1
on a landlord to take reasonable steps to mitigate his
2 of 24 Exams
losses (i.e. attempting to lease the property to another
tenant). However, in those states, the mitigation does not
need to be successful in order to recover damages (only
reasonable steps are required). If a landlord fails to mitigate,
some jurisdictions hold that the tenant is not liable for any
rent or damages after the date of abandonment.
• If the landlord leases the property to another tenant, the
landlord would be able to sue for the difference between the
original rent payments and the rent payments under the new
lease (as well as any incidental damages).
• At common law, a landlord could only recover rent that was
past due. Some states now permit a landlord to recover
future payments under the lease, wherein the damages are
measured by the value of rent for the remaining lease term
less the fair market value at the time the tenant wrongfully
terminated.
■■ Assignment of a Lease
• A lease may be freely assigned UNLESS a provision in the Feb 2017, Essay 6
HIGH lease states otherwise. However, an assignment can never be July 2008, Essay 4
for a longer period of time than the lessor’s remaining lease
2 of 24 Exams
term.
• An assignment occurs when a tenant (the assignor) transfers
ALL of his remaining interest in a lease to a third-party (the
assignee). The assignee is liable to the landlord for rent and
all other covenants that run with the land because privity
of estate arises between the assignee and the landlord. The
assignor also remains liable to the landlord for any rent not
paid by the assignee because privity of contract continues to
exist with the landlord.

11 REAL PROPERTY
• If the lease agreement requires the landlord’s consent for an

assignment, then such consent MUST be obtained by tenant
in order to assign the lease. When a lease is silent as the
standard of consent (a silent consent clause), two different
approaches have been adopted by state courts.
o In most states, a silent consent clause allows the
landlord to withhold consent for any reason, even
if unreasonable or arbitrary (except in violation of
discrimination laws).
o However, some states require that the landlord must
have a reasonable basis for withholding consent (it
cannot be unreasonably withheld). Examples of a
reasonable basis included the inability to fulfill terms
of the lease, financial irresponsibility or instability,
suitability of the premises for intended use, or
intended unlawful or undesirable use of the premises.
• Additionally, a landlord may be deemed to waive his right to
enforce a provision prohibiting assignments if he accepts rent
from the assignee.
■■ Subleases
• A lease may be freely sublet UNLESS a provision in the 0 exams
MED lease states otherwise. A sublease occurs when a tenant (the
sublessor) transfers only some of his remaining interest in a
0 of 24 Exams lease to a third-party (the sublessee). A sublease can never be
for a longer lease term than the sublessor has remaining in
his lease.
• The sublessee is NOT liable to the landlord for rent or other
covenants that run with the land because there is no privity
of estate with the landlord. If a lease prohibits subleases, the
landlord waives the right to enforce the provision if he accepts
rent from the sublessee.
• The sublessee CANNOT enforce covenants made by the
landlord under the lease, but can enforce any covenants made
by the sublessor.
■■ Termination of Leases: Surrender

• Surrender is an agreement between the landlord and tenant Feb 2017, Essay 6
HIGH to end a lease early. If the landlord accepts the surrender, Feb 2013, Essay 1
the tenant’s duty to pay rent after the acceptance ends. If the
2 of 24 Exams
landlord does not accept the surrender, the tenant is deemed to
have abandoned the lease, and is liable for damages.

11 REAL PROPERTY
• Unless otherwise agreed, an attempt by the tenant to end the

lease early DOES NOT constitute a surrender UNLESS the
landlord accepts the surrender. A landlord’s acceptance
must be clear (solely holding onto keys left by a tenant is not
sufficient acceptance without other evidence showing intent to
accept the surrender).
D. Covenants & Equitable Servitudes
■■ Real Covenants
• A real covenant is a non-possessory interest in land that 0 exams
MED obligates the holder to either do something or refrain
from doing something to the land. It differs from equitable
0 of 24 Exams servitudes in that the remedy is damages (rather than
injunctive relief).
• To enforce the benefit of a covenant there must be: (1) a
writing that satisfies the statute of frauds; (2) intent that the
covenant runs with the land; (3) vertical privity between
succeeding parties (exists when the successor holds the entire
interest held by the predecessor); AND (4) the covenant must
touch and concern the land (make the land more useful or
valuable to the benefitted party).
• To enforce the burden of a covenant, ALL OF THE ABOVE
REQUIREMENTS MUST BE MET, PLUS: (1) there must
be horizontal privity between the original parties (exists when
the two parties shared some interest in the land independent
of the covenant); AND (2) the new owner must have notice
of the covenant. Notice may be: (a) actual; (b) constructive
(the covenant is recorded in previous conveyances); OR
(c) by inquiry (an inspection of the land would reveal the
covenant).
■■ Equitable Servitudes
• Equitable servitudes are covenants (burdens on real property) 0 exams
MED that equity will enforce if the burdened estate had notice of
the covenants (regardless of whether the covenants run with
0 of 24 Exams the land at law). It differs from real covenants in that the
remedy is injunctive relief (rather than damages).
• To enforce the benefit of an equitable servitude there must
be: (1) a writing that satisfies the statute of frauds; (2) intent
for the servitude to be enforceable; AND (3) the servitude
must touch and concern the land (make the land more useful
or valuable to the benefitted party).

11 REAL PROPERTY
• To enforce the burden of an equitable servitude, ALL OF

THE ABOVE REQUIREMENTS MUST BE MET, PLUS the
new owner must have notice of the servitude. Notice may
be: (a) actual; (b) constructive (the servitude is recorded in
previous conveyances); OR (c) by inquiry (an inspection of
the land would reveal the servitude).
Common Scheme or Plan Doctrine (Reciprocal Negative

■■
Servitude)
• Under the Common Scheme or Plan Doctrine, a court will 0 exams
MED imply reciprocal restrictive covenants on parcels of land in

a subdivision sold by a developer only if: (1) the developer
0 of 24 Exams
had a common scheme or plan that all parcels of land would
be subject to the restriction at the time the parcel in the
subdivision was sold; AND (2) the defendant land owner had
actual, inquiry, or record notice of the restriction. Reciprocal
negative servitudes only apply to negative covenants and
equitable servitudes.
• In showing the defendant had notice, the proponent of the suit
must show either: (a) there was a common scheme or plan
and that it was obvious from looking at the subdivision that
a general pattern of restrictions existed (inquiry notice); (b)
the defendant had actual notice of the restriction; OR (c)
the defendant land owner had constructive notice through
documents publicly recorded (record notice).
■■Restrictive Covenants: Common Interest Ownership

Communities & Property Owner Associations
• Under the Restatement (Third) of Real Property, a Common 0 exams
MED Interest Community (“CIC”) is defined as a development

This topic was first
or neighborhood in which individually owned lots/units are testable on the Feb
0 of 5 Exams
burdened by a servitude that imposes an obligation to: (a) 2017 exam.
pay for or contribute to the maintenance of the property
held or enjoyed in common by the individual owners; OR
(b) pay dues or assessments to an association that (i)
provides services or facilities to the common property or to
the individually owned property or (ii) that enforces other
servitudes burdening the property in the development or the
neighborhood.
• Common forms of CIC’s are condominiums, cooperatives,
and home owner associations. Cooperatives are treated
as real property, even though the owner does not own the
premises (he only holds shares of the cooperative association
and the right to occupy the space).

11 REAL PROPERTY
• Residents in a CIC are bound to governance by a community

association, and are subject to obligations (restrictive
covenants) that have been recorded in land records and
run with the land. These covenants bind ALL successive
owners of the property. The power of the association to
govern, collect fees or assessments for maintenance, and to
enforce rules concerning the use and appearance of individual
properties is established through a recorded declaration of
covenants. In addition, the board of a community association
can pass specific regulations authorized by the recorded
declaration. These regulations may be changed as the board
sees fit.
• Generally, courts will grant injunctions or specific
performance to enforce such obligations and
regulations. However, courts generally are more deferential
to recorded covenants than to rules enacted by the board.
E. Easements & Licenses
■■ Easements by Grant, Prescription, Implication, & Necessity

• An easement is a non-possessory interest in the use of Feb 2018, Essay 4
HIGH someone else’s land. Easements are either in gross or Feb 2012, Essay 8
appurtenant.
2 of 24 Exams
o An easement in gross benefits a specific owner’s
enjoyment and use of the land and DOES NOT attach
MEE TIP
to the land (unless the easement is for commercial
activity). It DOES NOT pass to subsequent On the exam, apply the type
landowners. of easement based on the fact
pattern in the essay question.
o An easement appurtenant benefits any owner’s
enjoyment and use of the land and DOES attach to
the land. It DOES pass to subsequent landowners
so long as the new owner has notice. Notice may
be: (a) actual; (b) constructive (the easement is
recorded in previous conveyances); OR (c) by inquiry
(a reasonable person would have inquired about the
existence of any easements or interests in land based
on the facts or circumstances of the property).
• Any easement may be created by: (1) an express grant; (2)
prescription; (3) implication; OR (4) necessity.
o An Easement by Grant is an express agreement by
the grantor allowing the easement, and must: (1)
be in a writing signed by the grantor that satisfies
the statute of frauds (if the duration is more than
one year); (2) identify the land and parties
involved; AND (3) indicate the grantor’s intent to
convey the easement.

11 REAL PROPERTY
o An Easement by Prescription is created when

the possessor’s use of the land is: (1) open and
notorious; (2) continuous; (3) hostile (without
permission from the owner of the land); AND (4) for
the statutory period.
o An Easement by Implication (also known as a
implied easement) is established when: (1) a single
tract of land is divided by a common owner; (2) a
pre-existing use by the grantor is established prior
to the division of the land; (3) a continuous and
obvious indication that the use was intended to be
permanent; (4) the use affects the value of the
land conveyed; AND (5) such use is reasonably
necessary for the owner’s use and enjoyment of the
land conveyed (the easement is important or highly
convenient).
o An Easement by Necessity is created if: (1)
the original piece of land owned by one owner
is subdivided; AND (2) the access the easement
provides is essential to the use of the property because
there is no other ingress or egress available (i.e. no
viable road to access property).
■■ Scope of an Easement
• The scope of an easement depends on how the easement was 0 exams
MED created. An express easement by grant is limited to what was
agreed to by the parties. An easement implied by prior use is
0 of 24 Exams limited in scope to the prior use. A prescriptive easement is
limited in scope to the actual usage during the period required
to create the easement. An easement by necessity is limited to
remedying the necessity at issue.
■■ Termination of an Easement
• Typically, an easement is perpetual. However, an easement Feb 2012, Essay 8
HIGH may be terminated by: (1) estoppel (when the servient estate July 2011, Essay 4
owner reasonably relies on, or materially changes his position,
2 of 24 Exams
due to the easement holder’s assurance that the easement
will no longer be enforced); (2) termination of the necessity
that created the easement; (3) involuntary destruction of the
servient estate; (4) condemnation of the servient estate; (5)
written release; (6) abandonment (easement holder
demonstrates, through physical actions, an intent to never
use the easement again); (7) merger (holder of the easement
obtains title to the servient estate); OR (8) prescription.

11 REAL PROPERTY
■■ Licenses
• A license is NOT an interest in land, but merely a privilege to 0 exams
MED use another’s land in a particular way. The licensee must
act within the scope of the license.
0 of 24 Exams • A license DOES NOT need to be in writing.
• A license may be revoked at any time by the
licensor. However, a licensor may be estopped from
revoking a license if the licensee has invested a substantial
amount of money and/or labor in reasonable reliance on the
continuation of the license.
F. Fixtures
■■ Fixtures
• A fixture is an item that has been affixed to the land/dwelling July 2016, Essay 4
MED so that it is no longer personal property, but instead becomes
part of the land. Whether an item is a fixture is determined
1 of 24 Exams by the objective intent of the party who attached the item.
• To determine whether the item is a fixture, courts
consider: (1) the nature of the item; (2) the manner in
which it is attached; (3) the damage that would result if
the item were removed; and (4) the extent to which the
item is adapted to the property (i.e. an installed custom
window). The more the item is incorporated into the
premises, the more likely the court will find the item to be a
fixture.
• Under the trade fixture exception, an item that is attached to
the property for use in the tenant’s trade or business is NOT a
fixture UNLESS its removal would cause substantial damage
to the property. An item that is not a fixture may become one
if it’s not removed before the end of the lease term.
G. Adverse Possession
■■ Adverse Possession
• Adverse Possession Elements: Adverse possession allows Feb 2015, Essay 4
HIGH someone in possession of land owned by another to acquire July 2007, Essay 6
title to that land when the possession of the property is: (1)
2 of 24 Exams
continuous for the statutory period (usually 10 years); (2)
open and notorious (to put an owner on notice of the adverse
possession upon inspection of the land); (3) exclusive; (4)
actual (possess the property as the true owner would); AND
(5) hostile and under a claim of right (without the true
owner’s consent).

11 REAL PROPERTY
o Some states also require the possessor to have a good

faith belief that he owned the land.
o Most states DO NOT require the possessor to pay the
property taxes for the land.
• Aggregation/Tacking: Adverse possessors in privity may
aggregate their years spent possessing the property to
meet the statutory period. Privity exists when the land is
voluntarily transferred to another (i.e. by deed or bequest).
• Title Acquired: An adverse possessor can only acquire title to
the portion of land that he has met all the adverse possession
elements (unless constructive adverse possession applies). An
adverse possessor acquires the same title the original
owner possessed, and is therefore subject to any applicable
easements (unless the easement was terminated thorough
prescription or other valid means).
• Constructive Adverse Possession: Under the Doctrine of
Constructive Adverse Possession, if a person takes possession
of only a portion of the land covered under color of title
(an invalid deed to the land), that possession extends to the
entire portion of land described in the deed/title for adverse
possession purposes.
H. Land Conveyances
■■ Requirements for a Valid Land Sale Contract

• A valid contract for the sale of land must satisfy the statute of 0 exams
MED frauds. The contract must: (1) be in a writing; (2) describe
the property; (3) identify the parties involved; (4) contain
0 of 24 Exams the purchase price; AND (5) be signed by the grantor/
grantee (depending on whom the contract is being enforced
against).
• Once a deed to the property is delivered and accepted, the
land sale contract merges with the deed and any rights to sue
under the contract are extinguished (although the buyer may
sue upon the deed).
■■ Warranty of Marketable Title

• A seller has a duty to convey marketable title to a Feb 2018, Essay 4
MED buyer. Marketable title is title that is free from any cloud
or subject to any adverse claim. Title is unmarketable
1 of 24 Exams when it contains a substantial defect, such as: (1) defects
in the record chain of title; and/or (2) encumbrances, such as
mortgages, liens, restrictive covenants, easements, a claim of
adverse possession, and zoning violations. Although zoning
violations make title unmarketable, zoning restrictions do not.

11 REAL PROPERTY
• If the seller CANNOT convey marketable title at the

closing, the buyer may withdraw from the contract without
penalty. The requirement to deliver marketable title is a
condition that benefits the purchaser (not the seller), and the
purchaser may choose to waive the requirement. A seller
CANNOT cancel a real estate contract for failure to deliver
marketable title if the buyer chooses to waive the requirement.
• Merger Doctrine: While a seller must convey marketable
title at closing, once a deed to the property is delivered and
accepted, the land sale contract merges with the deed and any
rights to sue under the contract are extinguished. Thus, after
closing the buyer may only sue upon the deed. However,
some courts will not apply the merger doctrine if it doesn’t
carry out the probable intent of the parties (i.e. mutual
mistake, scrivener’s error).
■■ Warranty of Marketable Title: Damages Recoverable

• Ordinarily, damages for a breach of Covenant Against Feb 2018, Essay 4
MED Encumbrances or a breach of a Warranty of Title are
measured by the reduced value of land (subtract the value
1 of 24 Exams
of the property after the defect is discovered from its value
before the defect existed).
• Courts are divided on whether damages may be recovered
when the encumbrance is known or obvious to the plaintiff
(when notice exists). Notice may be actual, constructive, or
on inquiry. A person has actual notice of information directly
received (i.e. observed, expressly told, language in the
contract of sale or deed). A person is on constructive notice
of any information that could have been obtained from an
inspection of public land records (i.e. search of the grantor-
grantee index). A person is on inquiry notice of information
that would be revealed upon a reasonable inspection of the
land.
■■ Doctrine of Equitable Conversion & Risk of Loss

• Once a contract for the sale of land is signed, the doctrine of Feb 2009, Essay 4
MED equitable conversion splits ownership between the buyer
and the seller. The buyer has equitable title, while the
1 of 24 Exams seller has legal title and holds the property in trust for the
buyer. The buyer’s equitable ownership is considered real
property, while the seller’s legal title is considered personal
property.

11 REAL PROPERTY
• In the majority of jurisdictions, the risk of loss transfers to

the buyer upon the signing of the contract. In a minority of
jurisdictions, the seller bears the risk of loss UNLESS the
buyer has possession or title to the property at the time of loss.
■■ Time of Performance for Real Estate Contracts

• Even though a land sale contract may specify a closing date, 0 exams
MED the time for performance may be changed if requested by
one of the parties UNLESS the real estate contract contains a
0 of 24 Exams clause that “time is of the essence”. If the contract contains a
time is of the essence clause, the buyer must perform on the
closing date (unless agreed otherwise). If the buyer fails to
perform, it will be deemed a material breach, and the seller
may keep the buyer’s down payment as liquidated damages.
■■ Action for Specific Performance of Real Property

• Specific performance is an equitable remedy that is 0 exams
MED appropriate when monetary damages will not fully remedy
a party’s complaint. Real property is always considered
0 of 24 Exams unique, and specific performance is an appropriate
remedy UNLESS the property has since been sold to a bona
fide purchaser without notice.
■■ Home Builder’s Implied Warranty

• The Home Builder’s Implied Warranty protects a purchaser Feb 2018, Essay 4
HIGH of a newly constructed home against latent defects, July 2013, Essay 8
and warrants that the building is safe and fit for human
2 of 24 Exams
habitation at the time of sale. A latent defect is one that could
not have been discovered by reasonable inspection. Breach
of the warranty allows a buyer to recover damages for defects
discovered within a reasonable amount of time due to: (a)
defective construction; or (b) construction not performed in a
workmanlike manner (the accepted norms of the industry).
• Some courts require privity of contract between the purchaser
and the builder, and will NOT extend the warranty to remote
grantees and subsequent purchasers. However, other courts
will apply the warranty to subsequent owners of the property
because they are in the same vulnerable position as the initial
purchaser.

11 REAL PROPERTY
I. Title to Real Property
■■ Deed Requirements
• A valid deed must: (1) be in a writing; (2) be signed by the July 2007, Essay 6
MED grantor; (3) identify the grantor and grantee; (4) describe
the property; AND (5) indicate the grantor’s present intent
1 of 24 Exams to convey the land.
• Intent to Convey: Any words indicating the grantor’s intent
to immediately convey the property are sufficient (i.e. grant,
convey, give, transfer).
• When a deed is unconditional on its face and given to a
grantee, additional oral conditions are NOT valid. However,
if the same deed is instead given to a third-party (i.e. to be
held in escrow), any additional conditions would create a
conditional delivery.
General Warranty Deed, Special Warranty Deed, & Quitclaim

■■
Deed
• Upon the transfer of land, the seller may execute and deliver Feb 2018, Essay 4
HIGH to the buyer one of the following three types of deeds: (1) Feb 2015, Essay 4
general warranty deed; (2) a special warranty deed; or (3) a July 2013, Essay 8
4 of 24 Exams
quitclaim deed. The buyer’s rights under the deed depend on Feb 2010, Essay 2
the type.
• A general warranty deed contains six covenants of
title; three present and three future.
o The present covenants are the covenants of: (1)
seisin (the grantor is the rightful owner); (2) right MEE TIP
to convey (the grantor has the right to make the On the exam, apply the rule for
grant); AND (3) against encumbrances (there are the specific type of deed(s) noted
in the fact pattern of the essay
no encumbrances against the title). These present
question.
covenants can only be breached at the time of
conveyance.
 Under common law, present covenants
contained in a general warranty deed (seisen,
right to convey, and against encumbrances)
were NOT enforceable by remote
grantees. However, some states will enforce
such covenants against encumbrances if the
remote grantee did not have notice of the
encumbrance.
o The future covenants are the covenants of: (1)

11 REAL PROPERTY
warranty (grantor will defend grantee against any

third party claims to title); (2) quiet enjoyment
(grantee will not be bothered by a third party’s lawful
claim to title); AND (3) further assurances (the
grantor will do whatever is reasonable to perfect title
if problems arise). These future covenants can be
breached at any time upon the interference with the
grantee’s possession of the property.
• A special warranty deed only warrants that the seller
has not breached the covenants of title during his period
of ownership: (1) seller has not previously conveyed the
property; and (2) there are no encumbrances against the title
made by the seller.
• A quitclaim deed DOES NOT contain any covenants or
promises to the buyer. It is an “as is” deed, leaving the buyer
with NO rights to sue the seller/grantor for any encumbrances
or defects in title.
■■ Estoppel by Deed
• Under the doctrine of estoppel by deed, if a grantor conveys 0 exams
MED title to real property by deed before he owns the property,
the title will automatically vest in the grantee as soon as the
0 of 24 Exams grantor acquires title to the property.
■■ Chain of Title and Wild Land Records

• The chain of title shows all transfers of title for a piece of real July 2011, Essay 4
HIGH property. Transfers of real property are organized in public Feb 2010, Essay 2
records under two indexes. One index is organized by the Feb 2009, Essay 4
3 of 24 Exams
names of the grantors, and the other index is organized by
the names of the grantees.
• If a land transfer is NOT recorded properly, it is considered
“wild”. A wild deed, mortgage, or easement is effective
between the parties, BUT it will not put subsequent
purchasers on constructive notice because it’s outside the
chain of title (it’s not discoverable in the land records).
■■ Recording Statutes & Notice

• At common law, if real property is transferred multiple times July 2011, Essay 4
MED by the same grantor, whoever rightfully received the property
first had valid title against the other transfers. Today, every
1 of 24 Exams state has enacted a recording statute altering the common law
rule.

11 REAL PROPERTY
• Three types of recording statutes exist to protect those who

record their interests in land.
o In a notice statute jurisdiction, a subsequent bona fide
purchaser will prevail over a prior grantee that failed
to record.
o In a race statute jurisdiction, whomever records first
prevails (notice is irrelevant).
o In a race-notice statute jurisdiction, a subsequent bona
fide purchaser is protected ONLY IF he records before
the prior grantee.
■■ Bona Fide Purchasers & The Shelter Rule

• A bona fide purchaser (BFP) is a person/entity who: (1) July 2011, Essay 4
HIGH takes real property without notice (actual, inquiry, or Feb 2010, Essay 2
constructive) of a prior conveyance; AND (2) pays valuable Feb 2009, Essay 4
4 of 24 Exams
consideration. A person who receives land by gift (a July 2007, Essay 6
donee) or by bequest (an heir/devisee) is NOT a bona fide
purchaser because he did not pay valuable consideration for
the property. However, if said person sells the property, the
subsequent owner may be deemed a bona fide purchaser.
o Notice may be actual, constructive, or on inquiry. A
person has actual notice of information directly
received (i.e. expressly told or language in the
deed). A person is on constructive notice of any
information that could have been obtained from an
inspection of public land records (i.e. search of
the grantor-grantee index). A person is on inquiry
notice of information that would be revealed upon a
reasonable inspection of the land.
• Under the shelter rule, a person who purchases from a bona
fide purchaser (BFP) receives the same status and rights as
the BFP.
Owner by Adverse Possession vs. Subsequent Bona Fide

■■
Purchasers
• Owners of property acquired through adverse possession July 2007, Essay 6
MED are protected against recording statutes because they have

no documents to record. Courts have held that a bona
1 of 24 Exams
fide purchaser of a later conveyance from the prior record
title owner CANNOT defeat title acquired under adverse
possession, even if the land was not occupied at the time of
the conveyance.

11 REAL PROPERTY
■■ Deeds: Drafting, Review, and Negotiation of Closing Documents

• Generally, the grantor (seller) or the grantor’s real estate 0 exams
MED broker will hire an attorney to prepare the Deed to ensure
that all of the requirements are met to convey title to the testable on the Feb
0 of 5 Exams property. However, a party to the transaction may draft the 2017 exam.
Deed.
• The language of the Deed may be negotiated or modified
by the agreement of the parties. Such modifications may
include the acceptance of certain encumbrances on the
land (i.e. waiver of an encumbrance for gas or electrical
companies).
■■ Deeds: Persons Authorized to Execute Real Estate Documents

• The grantor (seller) of the real property MUST sign the 0 exams
MED Deed. However, a grantor may designate an agent to sign
the deed on his behalf (most states require that a power of testable on the Feb
0 of 5 Exams attorney or similar writing be signed stating that the agent has 2017 exam.
the authority to sign a Deed or closing documents on behalf of
the grantor). Generally, the grantee (buyer) is NOT required
to sign the Deed.
• If an entity or business organization is the grantor, then
authorized persons must sign the Deed on behalf of the
entity (such as officers of a corporation or managing members
of a limited liability company). The board or members of the
entity may be required to pass a resolution approving the sale
of real property if the sale constitutes all or substantially all of
the entity’s assets.
• Generally, a witness or an acknowledgement (signing the
Deed in front of a notary public) is NOT required for the Deed
to be valid. However, an acknowledgement may be required
by local law to record the Deed.
J. Mortgages/Security Devices
■■ Mortgages & Requirements for a Valid Mortgage

• A mortgage is a security interest in real property intended 0 exams
MED to be collateral for repayment of a loan. The debtor is the
mortgagor, and the lender is the mortgagee.
0 of 24 Exams • To be valid, a mortgage must be: (1) in writing; (2) signed
by the party to be charged; AND (3) reasonably identify the
parties and the land.

11 REAL PROPERTY
■■ Purchase Money Mortgage

• A purchase money mortgage is used by the buyer (the 0 exams
MED borrower) to purchase real property, and the seller is the
lender who secures a mortgage on the property.
0 of 24 Exams • The holder of a purchase money mortgage has priority
over: (1) all claims and mortgages against the mortgagor
prior to the purchase of the property; AND (2) all subsequent
claims and mortgages, unless defeated by a recording statute.
■■ Future-Advance Mortgage
• A future advance mortgage is a loan in which the lender July 2018, Essay 3
HIGH may provide future payments under the original loan (usually Feb 2012, Essay 8
used in a construction loan context). The lender secures a
2 of 24 Exams
mortgage on the real property for the entire amount of the
loan, including future advances.
• Obligatory vs. Optional: Future advance loans are either
obligatory or optional. It is obligatory if the lender has a
duty to advance the funds regardless of the situation – there
are no discretionary conditions. It is optional if the lender
has discretion whether to make the future advances (i.e. a
satisfactory-progress condition).
• Priority Over Other Creditors:
o If the lender is obligated to make future payments,
then ALL payments are deemed part of the original
loan (whether or not disbursed yet) and have priority
over subsequently filed liens.
o If future payments are optional, then each payment
must be analyzed separately. An advance will NOT
take priority when: (1) the advance is made after
another filed lien on the property; AND (2) the lender
has notice of the lien. The majority view requires
actual notice, while only constructive notice is
required under the minority view.
■■ Deed of Trust
• A deed of trust is similar to a mortgage (as it is a security 0 exams
MED interest in real property intended to be collateral for
repayment of a loan), BUT it involves three parties: (1)
0 of 24 Exams the borrower (the purchaser of the property); (2) the
lender; AND (3) a third-party trustee who holds title of the
property until the loan is paid off. Once the loan is fully paid,
the trustee must transfer title to the purchaser of the land.

11 REAL PROPERTY
■■ Assumption & Transfer Subject to a Mortgage

• A mortgage assumption may be express or implied. July 2013, Essay 8
MED o An express mortgage assumption occurs if there is
an express agreement for the grantee to (1) take the
1 of 24 Exams real property, AND (2) continue making mortgage
payments to the lender.
o An implied mortgage assumption occurs if: (1) no
express agreement exists; (2) the grantee pays the
seller only the equity in the home; AND (3) the
grantee continues to make payments to the lender
on the balance of the mortgage. Only a few states
allow for implied assumption (most states reject the
approach).
• If a buyer takes real property subject to a seller’s mortgage,
he is NOT personally liable on the mortgage. However,
a duly recorded mortgage remains on the land, and the
mortgagee may foreclose on the mortgage and sell the
burdened property in a foreclosure sale. If a buyer takes real
property and “assumes” the seller’s mortgage, the buyer will
be primarily and personally liable on the mortgage, while the
seller remains secondarily liable.
Mortgages: Foreclosure, Order of Preference, and Deficiency

■■
Judgments
• Foreclosure destroys junior mortgages, in that any mortgage Feb 2012, Essay 8
MED recorded after the mortgage being foreclosed on will be

extinguished. However, all prior recorded mortgages are not
1 of 24 Exams
affected.
• Proceeds from a sale are used to pay off debts in the following
order: (1) attorney fees and expenses associated with the
sale; (2) debts owed to mortgagee; and (3) any amount left to
the mortgagor.
• A mortgagee (the lender) may seek a deficiency judgment
against a mortgagor (the debtor) if the proceeds of the
foreclosure sale are insufficient to satisfy the mortgage.
■■ Transfer of a Mortgage Note

• Some states require that the promissory note be assigned 0 exams
MED along with the mortgage. Other states hold that the note
automatically follows a mortgage when it is properly
0 of 24 Exams assigned (even without notice to the mortgagor). However,
a mortgagor is NOT liable to the assignee of the note (for
any payments made to the assignor) if the mortgagor did not
receive notice of the assignment.

11 REAL PROPERTY
K. Zoning
■■ Zoning Ordinances
• Zoning ordinances and laws (land-use regulations that 0 exams
MED adversely affected real property interests) are allowed in
instances when it reasonably protects the health, safety,
0 of 24 Exams morals, or general welfare of the community.
■■ Zoning Ordinances: Variances

• A variance is an exception to a zoning ordinance. Two types 0 exams
MED of variances exist: (i) a use variance; and (ii) an area
variance.
0 of 24 Exams • An application for a variance may be granted if: (1) the
property owner shows she will suffer hardship because of the
ordinance; AND (2) the variance will not damage or harm
the public welfare.
■■ Zoning Ordinances: Previous Non-Conforming Use

• The doctrine of previous non-conforming use allows a July 2018, Essay 3
MED landowner to continue to use his land in violation of a later
enacted zoning law. Where the prior use of the land was
1 of 24 Exams originally legal, the subsequent enactment of a zoning law
will NOT bar the continued use of the land as it was legally
used before the law’s enactment. A non-conforming use will
only be “grandfathered in” if it remains in use. If the use is
NOT continuous, it may no longer be protected.
• The non-conforming use doctrine is meant to protect the
prior investment in real property. Insubstantial changes
and reasonable alterations to repair the property ARE
PERMITTED. The enlargement, alteration, or extension of
a nonconforming use that constitutes a substantial change IS
PROHIBITED.
L. Conflict of Laws
■■ Choice of Law Rules: Real Property Cases

• In cases involving the title to real property or a contract for July 1998, Essay 3
MED the sale of real property, the laws of the state where the real
property is located will generally govern (known as the situs testable for Real
1 of 24 Exams rule), as states have a strong interest in actions that affect real Property on the Feb.
property located within their state. 2017 exam, but was
previously tested in
Conflict of Laws.

11 REAL PROPERTY
o Under the Restatement (First) approach, the laws of

the state where the real property at issue is located
(the situs) will always govern.
o Under the Restatement (Second) approach, it is
presumed that the state where the property is located
has the most significant relationship to the action, and
that law will govern the action.
o Under the Interest Analysis approach, where the real
property at issue is located (the situs) will generally
govern, UNLESS another state has a greater interest
in having its law applied.
• However, if real property is merely incidental to a contract
(i.e. real estate brokerage contracts, mortgage agreements),
then the conflict of laws rules for contracts must be used to
determine the applicable law.

12 SECURED TRANSACTIONS
UCC = Uniform Commercial Code
MEE TIP
A. Applicability & Scope of Article 9 of the UCC
State this rule at the beginning
of your essay answer for any
■■ Article 9 of the UCC Governs Secured Transactions question concerning a secured
transaction.
• Article 9 of the Uniform Commercial Code (UCC) governs
HIGH any transaction regardless of its form that creates a All 36 Exams in
security interest, including security interests in personal which Secured
property, consignments, a sale of accounts, chattel paper, and Transactions was
36 of 49 Exams Tested.
promissory notes.
■■ Scope of Article 9 of the UCC: Substance Over Form Controls

• Article 9 of the Uniform Commercial Code (UCC) governs Feb 2016, Essay 1
HIGH any transaction regardless of its form that creates a security July 2012, Essay 5
interest. Substance over form controls, and how the parties July 2011, Essay 1
5 of 49 Exams
classify the transaction is immaterial. Feb 2010, Essay 1
• Title to Collateral is Immaterial: Article 9 of the UCC July 2009, Essay 4
applies to a security interest regardless of whether title to
the collateral is in the name of the secured party. A seller
CANNOT retain or reserve title to goods that have been
delivered or shipped. Any attempt by a seller to retain or
reserve title after a shipment/delivery to the buyer, is limited
in effect to a reservation of a security interest.
• Lease vs. Security Interest: A transaction labeled as a
“lease” may be deemed a security interest. Courts will
consider the economic realities of the transaction, NOT the
intent of the parties. A transaction labeled a “lease” creates
a security interest if: (1) a commitment to make payments
for a term exists; AND (2) either (a) the original term of the
lease is equal to or greater than the remaining economic life
of the goods; (b) the lessee must renew the lease for the
remaining economic life of the goods (or is forced to take
ownership); (c) the lessee has an option to renew the lease
for the remaining economic life of the goods for no additional
consideration; or (d) the lessee has an option to become the
owner of the goods for no additional consideration.

B. Definitions
■■ Types of Collateral: Accounts

• An “account” is a right to payment of a monetary obligation July 2017, Essay 3
HIGH (whether or not earned by performance) for any of the Feb 2015, Essay 3
following: (1) property that has been or is to be sold, Feb 2007, Essay 7
4 of 49 Exams
leased, or otherwise disposed of; (2) services rendered; (3) July 2004, Essay 7
a policy of insurance issued; (4) a secondary obligation
incurred; (5) energy provided; (6) the use or hire of a vessel
under a charter or other contract; (7) a debt arising out of the
use of a credit card; OR (8) winnings in a lottery or other
game of chance sponsored by a State.
■■ Types of Collateral: Deposit Accounts

• A “deposit account” is a demand, time, savings, or similar Feb 2008, Essay 7
LOW account maintained with a bank. This DOES NOT
include investment property or accounts evidenced by an
1 of 49 Exams
instrument. A deposit account can only be perfected by
control.
■■ Types of Collateral: Inventory

• “Inventory” means goods that: (a) are leased by a person Feb 2015, Essay 3
HIGH as lessor; (b) are held by a person for sale/lease or to July 2012, Essay 5
be given under a contract of service; (c) are given by a July 2011, Essay 1
7 of 49 Exams
person under a contract of service; OR (d) consist of raw Feb 2011, Essay 3
materials, work in process, or materials used or consumed in Feb 2010, Essay 1
a business. Inventory DOES NOT include farm products or Feb 2006, Essay 6
goods that are only being held for repair. Feb 1995, Essay 7
■■ Types of Collateral: Equipment

• “Equipment” consists of goods other than inventory, farm July 2016, Essay 4
HIGH products, or consumer goods. “Goods” means all things that Feb 2015, Essay 3
are movable when a security interest attaches, including July 2012, Essay 5
8 of 49 Exams
fixtures, timber, the unborn young of animals, crops, and July 2011, Essay 1
manufactured homes. July 2008, Essay 1
• Some states have a motor vehicle “certificate-of-title” statute, Feb 2008, Essay 7
which requires that the security interest be noted on the title Feb 2000, Essay 1
of vehicle for the interest to be perfected. In such states, Feb 1995, Essay 7
merely filing a financing statement is insufficient to perfect
the security interest.

■■ Types of Collateral: Consumer Goods

• “Consumer goods” are those used or purchased primarily for Feb 2013, Essay 4
HIGH personal, family, or household purposes. Feb 2011, Essay 3
Feb 2005, Essay 6
Feb 2000, Essay 1
5 of 49 Exams
Feb 1999, Essay 7
■■ Types of Collateral: Proceeds

• “Proceeds” refer to the following property: (1) anything July 2016, Essay 4
HIGH acquired upon the sale, lease, or other disposition of Feb 2016, Essay 1
collateral; (2) anything collected/distributed on account July 2012, Essay 5
4 of 49 Exams
of collateral; (3) rights arising out of collateral; (4) claims Feb 1996, Essay 6
arising out of the loss, nonconformity, defect, or interference
with the use of collateral (but only to the extent of the value
of collateral); OR (5) insurance payable by reason of the
loss/nonconformity, defects, or damage to the collateral (but
only to the extent of the value of collateral and to the extent
payable to the debtor or the secured party). A check given in
exchange for secured goods is deemed to be “cash proceeds”.
■■ Types of Collateral: Chattel Paper

• Chattel paper is a record (or records) that evidences July 2016, Essay 4
MED both: (1) a monetary obligation; AND (2) either (a) a Feb 1996, Essay 6
security interest in specific goods, (b) a lease of specific
2 of 49 Exams goods, or (c) a security interest in specific goods with
software or a software license used in the goods.
• A monetary obligation is an obligation to pay money that
is (a) secured by the goods, or (b) owed under a lease of
the goods. It includes a monetary obligation with respect to
software used in the goods. If a transaction is evidenced by
records that include an instrument or series of instruments, the
group of records taken together constitutes chattel paper.
C. Attachment and Perfection
■■ Attachment and Perfection

• Under Article 9 of the UCC, a creditor may properly obtain a Feb 2019, Essay 2
HIGH security interest in collateral as a means to secure a loan given July 2017, Essay 3
to a debtor. To obtain a valid security interest in collateral, July 2016, Essay 4
23 of 49 Exams
the creditor MUST: (1) attach the collateral; AND (2) Feb 2016, Essay 1
perfect its interest. Attachment secures the creditor’s rights Feb 2015, Essay 3
in the debtor’s collateral, while perfection gives notice of the Feb 2014, Essay 3
creditor’s rights in the collateral to other parties who may Feb 2013, Essay 4
have claims to the same. A security interest CANNOT be July 2012, Essay 5
perfected, unless it has first attached.

• Attachment requires: (1) that the creditor extend value to

the debtor; (2) the debtor must have rights in the collateral; July 2011, Essay 1
AND (3) one of the following: Feb 2011, Essay 3
o (a) an authenticated record/security agreement Feb 2010, Essay 1
memorializing the security interest; July 2009, Essay 4
 The record/security agreement must (i) Feb 2008, Essay 7
be authenticated by the debtor and (ii) Feb 2006, Essay 6
reasonably identify the collateral. A super- July 2005, Essay 3
generic description of the collateral (i.e. Feb 2005, Essay 6
“all the debtor’s assets” or “all the debtor’s Feb 2004, Essay 5
personal property”) is not sufficient. July 2001, Essay 3
o (b) the collateral is in the secured party’s possession Feb 2000, Essay 1
pursuant to a security agreement; July 1998, Essay 4
o (c) the collateral is a certificated security in registered Feb 1996, Essay 6
form and the security certificate has been delivered July 1995, Essay 2
to the secured party pursuant to a security agreement; Feb 1995, Essay 7
OR
o (d) the secured party has control of certain types of
collateral (deposit accounts, electronic chattel paper,
investment property, or letter-of-credit rights) pursuant
to a security agreement.
 A Security Agreement is an agreement that
creates or provides for a security interest. It
may be an oral agreement, unless otherwise
specified.
• Typically, Perfection is obtained by the creditor filing a
financing statement with the Secretary of State that identifies
the collateral and his security interest in it. Perfection may
also be obtained by taking possession or control of the
collateral that is providing the security interest. Consumer
“purchase money security interests” are automatically
perfected (filing a financing statement is not required).
■■ Financing Statements
• An effective financing statement must: (1) provide the name
of the debtor and secured party; (2) indicate the collateral Feb 2008, Essay 7
MED
covered by the financing statement; AND (3) be filed by a Feb 2007, Essay 7
person authorized by the debtor in an authenticated record, Feb 2004, Essay 5

3 of 49 Exams
security agreement, or upon acquisition of the collateral.
o If the debtor is a registered organization, a financing
statement must provide the official registered name of
the organization.

• A financing statement that substantially complies with the

above requirements is effective. Minor errors or omissions
will not render a statement ineffective UNLESS the errors
or omissions make the statement seriously misleading. A
financing statement that fails to sufficiently provide the name
of the debtor is deemed seriously misleading UNLESS the
statement would be discoverable in a search of the records of
the filing office under the debtor’s correct name.
■■No Interest Retained in a Payment Right Sold & Rights/Title

with Respect to Creditors and Purchasers
• A debtor that has sold an account, chattel paper, payment July 2017, Essay 3
LOW intangible, or promissory note DOES NOT retain an interest

in the collateral sold. HOWEVER, when determining the
1 of 49 Exams
rights of creditors or purchasers of an account or chattel
paper sold by a debtor, the debtor is deemed to have rights
in such collateral while the buyer’s security interest is
unperfected.
■■ Purchase Money Security Interests (PMSI’s)

• When a creditor extends value to the debtor for the purpose Feb 2016, Essay 1
HIGH of enabling the debtor to acquire rights in the collateral, a Feb 2013, Essay 4
purchase money security interest (PMSI) arises. Feb 2011, Essay 3
10 of 49 Exams
• PMSI’s in consumer goods enjoy automatic perfection July 2008, Essay 1
under Article 9 of the UCC, and the creditor need not file a Feb 2006, Essay 6
financing statement to perfect his PMSI with respect to the Feb 2005, Essay 6
debtor. The UCC gives special protection to PMSI holders in Feb 2002, Essay 2
an effort to encourage lending to consumers. July 2001, Essay 3
o Consumer goods are goods purchased primarily for Feb 2000, Essay 1
the buyer’s personal, family, or household purposes. Feb 1997, Essay 3
• In a non-consumer goods transaction, if a person files a
financing statement with respect to a PMSI before or within
20 days after the debtor receives delivery of the collateral,
then the security interest takes priority over conflicting
interests which arise between the time the security interest
attaches and the time of filing.
■■ Automatic Perfection for Certain Assignment of Accounts

• Under Article 9 of the UCC, a security interest is Feb 2007, Essay 7
LOW automatically perfected upon attachment of an assignment
of accounts if it does not transfer a significant part of the
1 of 49 Exams
outstanding accounts of the assignor.

D. Validity of Security Agreements & Rights of Parties
■■ Security Interest in the Sale of Collateral & Identifiable Proceeds

• Generally, a security interest will continue despite any sale, July 2016, Essay 4
HIGH lease, or other disposition of the collateral, UNLESS the Feb 2016, Essay 1
secured party authorizes the disposition free of the security Feb 2015, Essay 3
8 of 49 Exams
interest. Similarly, a security interest will NOT be deemed Feb 2014, Essay 3
invalid because the debtor has the right (or ability) to use or Feb 2013, Essay 4
dispose of the collateral. A security agreement is effective July 2012, Essay 5
against purchasers of the collateral. Feb 2011, Essay 3
• A perfected security interest will attach to any identifiable Feb 1997, Essay 3
proceeds from the disposition of collateral. However, the
interest in proceeds will become unperfected on the 21st day
after attachment to the same UNLESS: (a) the proceeds are
identifiable cash proceeds; (b) the security interest in the
proceeds is perfected (other than by perfection of the original
collateral) when the security interest attaches to the proceeds
or within 20 days thereafter; OR (c) if all of the following
conditions are satisfied: (i) the original collateral was
perfected under the general filing rule; (ii) the proceeds are
collateral that may be perfected under the general rule; and
(iii) the proceeds are not acquired with cash proceeds.
■■ Consignment
• Under UCC Article 9, a consignment is a transaction in Feb 2006, Essay 6
LOW which: (1) a person delivers goods to a merchant for the
purpose of sale; (2) the merchant deals in goods of that
1 of 49 Exams
kind, is not an auctioneer, and is generally not known by his
creditors to be substantially engaged in selling the goods
of others; (3) the aggregate value of the goods is $1,000
or more at the time of each delivery; (4) the goods are not
consumer goods immediately before delivery; AND (5) the
transaction does not create a security interest.
• The consignee is deemed to have rights and title identical to
those the consignor had concerning the goods for purposes of
determining the rights of (i) the creditors of a consignee, and
(ii) purchasers for value of goods from a consignee.

■■ Control of a Deposit Account

• A deposit account can only be perfected by control. A Feb 2008, Essay 7
LOW secured party has “control” of a deposit account if: (a)
the secured party is the bank where the deposit account is
1 of 49 Exams
maintained; (b) the debtor, secured party, and bank have
agreed in an authenticated record that the bank will comply
with the secured party’s instructions for deposits without
further consent by the debtor; OR (c) the secured party
becomes the bank’s customer with respect to the deposit
account.
■■ Future Advances
• A security agreement may provide that the collateral secures Feb 2002, Essay 2
MED future advances (or that accounts are sold in connection Feb 1998, Essay 7
with), whether or not the advances are mandatory.
2 of 49 Exams
E. Protection of a Buyer of Goods
■■ Transfers of Collateral & The Shelter Principle

• A buyer receives ALL of the rights the seller had upon Feb 2016, Essay 1
MED transfer of the goods, including all ownership or enforcement Feb 2011, Essay 3
rights (except that a purchaser of a limited interest acquires July 2000, Essay 6
3 of 49 Exams rights only to the extent of the interest purchased).
• Thus, a seller who did not have title to goods, cannot transfer
title to the buyer (unless an exception applies, such as a buyer
in the ordinary course of business).
• Under the Shelter Principle, if a buyer acquires property free
of a security interest, then any subsequent transfer by the
buyer to someone else is also free of the security interest.
■■ Buyers in the Ordinary Course of Business

• Buyers in the ordinary course of business take free of a Feb 2016, Essay 1
HIGH security interest created by the seller. Thus, if a person Feb 2015, Essay 3
entrusts goods to a merchant who deals in goods of that kind, Feb 2014, Essay 3
9 of 49 Exams
the merchant has power to transfer title to a buyer in the Feb 2013, Essay 4
ordinary course of business (even though the merchant seller July 2012, Essay 5
did not have title to the goods). Feb 2011, Essay 3
• A buyer in ordinary course of business is a person that: (1) July 2001, Essay 3
buys goods in good faith; (2) without knowledge that the Feb 1997, Essay 3
sale violates the rights of another person in the goods; AND Feb 1996, Essay 6
(3) in the ordinary course from a merchant (a person in the
business of selling goods of that kind).

■■ Consumer-to-Consumer Rule
• Under the Consumer-to-Consumer Rule, buyers of consumer Feb 2016, Essay 1
MED goods take free of a security interest if the goods are Feb 2013, Essay 4
bought: (1) without knowledge of the security interest; (2) Feb 2011, Essay 3
3 of 49 Exams for value; (3) from a consumer who purchased the goods
primarily for personal, family, or household purposes; AND
(4) before the filing of a financing statement covering the
goods.
• Consumer goods are goods purchased primarily for the
buyer’s personal, family, or household purposes.
F. Priorities MEE TIP

On the exam, apply the
■■ Priority for Perfected Interests & Unperfected Interests appropriate priority rule(s)
depending on the types on
• Perfected Interest vs. Unperfected Interest: A perfected interests involved (i.e. perfected,
HIGH security interest has priority over a conflicting unperfected unperfected, judgment lien, etc.)
security interest in the same collateral.
18 of 49 Exams
• Unperfected Interest vs. Unperfected Interest: When there July 2017, Essay 3
are two competing unperfected security interests, the first to Feb 2014, Essay 3
attach will prevail. July 2012, Essay 5
• Perfected Interest vs. Perfected Interest: The rule of “first July 2011, Essay 1
in time, first in right” controls, which means that the first Feb 2010, Essay 1
creditor to perfect by filing has priority. Under Article 9 of July 2009, Essay 4
the UCC, a creditor generally achieves priority by perfecting July 2008, Essay 1
his security interest before another party. Perfection Feb 2008, Essay 7
involves: (1) giving value; AND (2) recording or putting Feb 2007, Essay 7
other creditors on notice of the security interest by Feb 2006, Essay 6
filing. Therefore, filing is a key element to perfecting the Feb 2002, Essay 2
security interest. July 2001, Essay 3
• PMSI vs. Perfected/Unperfected Interest: A purchase money Feb 2000, Essay 1
security interest (PMSI) in consumer goods enjoys automatic Feb 1998, Essay 7
perfection under Article 9 of the UCC (the creditor doesn’t Feb 1997, Essay 3
need to file a financing statement to perfect the interest). July 1996, Essay 6
As such, a PMSI in consumer goods takes priority over Feb 1996, Essay 6
another perfected or unperfected interest. For PMSI’s July 1995, Essay 2
in non-consumer goods, a financing statement must be filed
in order to perfect the interest; otherwise the security interest
in unperfected.

■■ Priority of Liens Arising by Law

• A possessory lien on goods has priority over a security Feb 2008, Essay 7
LOW interest in the goods UNLESS the lien is created by a statute
that expressly provides otherwise. A possessory lien is
1 of 49 Exams
an interest (other than a security interest) that: (1) secures
payment or performance of an obligation for services or
materials furnished by a person in the ordinary course of the
person’s business; (2) is created by statute or rule of law in
favor of the person; AND (3) whose effectiveness depends on
the person’s possession of the goods. A mechanic’s lien is an
example of a possessory lien.
■■ Priority of Judgment Lien Creditors

• Judgment lien creditors have priority over conflicting security Feb 2019, Essay 2
HIGH interests if the person became a lien creditor before the Feb 2015, Essay 3
conflicting security interest was perfected July 2012, Essay 5
5 of 49 Exams
• Priority also extends to future advances secured more than Feb 2004, Essay 5
45 days after the person became a lien creditor UNLESS the Feb 2002, Essay 2
advance is made without knowledge of the lien. However,
this rule does not apply to a security interest held by a buyer
of accounts or a consignor.
■■ Fixtures
• An ownership interest in real property has priority over July 2016, Essay 4
MED conflicting security interests in fixtures. Feb 2005, Essay 6
• However, two major exceptions exist: July 1998, Essay 4
3 of 49 Exams o Exception # 1: A perfected purchase money security
interest in fixtures has priority over a conflicting
ownership interest if: (1) the debtor has an interest
of record or is in possession of the real property; (2)
the ownership interest arose before the goods became
fixtures; AND (3) the purchase money security
interest was perfected before the goods become
fixtures or within 20 days thereafter.
o Exception # 2: A fixture filing, which is the filing of
a financing statement that: (1) covers goods that are
or will become fixtures; AND (2) satisfies all general
rules for financing statements (name of the debtor,
name of the secured party or a representative, and
indicate the collateral covered), plus the following: (i)
state that it covers a fixture; (ii) be filed in the real
property records; (iii) provide a sufficient description
of the real property; and (iv) provide the name of a
record owner (if the debtor does not have an interest of
record in the real property).

G. Accessions
■■ Accessions & Commingling

• Accessions are goods that are physically united with July 2008, Essay 1
LOW other goods, but continue to retain their separate
identity. Generally, the security interest in the separate goods
1 of 49 Exams
continues in the accession collateral. If a security interest
is perfected when the collateral becomes an accession, the
security interest remains perfected in the collateral.
• Commingling: When an accession is the result of two goods
that are subject to different security interests, the general
rules of priority determine which interest will continue in
the accession. An exception applies for security interests
perfected by compliance with the requirements of a
certificate-of-title statute. These interests take priority over
all others.
H. Secured Party’s Rights & Remedies Upon Default

July 2016, Essay 4
■■ Secured Party’s Right to Take Possession of Collateral July 2009, Essay 4
• After default, a secured party may: (1) take possession of July 2005, Essay 3
HIGH the collateral; AND (2) without removal, render equipment July 2003, Essay 6
unusable and dispose of collateral on a debtor’s premises. July 2002, Essay 1
6 of 49 Exams
• The secured party may proceed either pursuant to: (a) July 1998, Essay 4
judicial process; OR (b) without judicial process (if it
proceeds without a breach of the peace). To determine
whether repossession was peaceful courts examine: (i)
where the repossession took place; (ii) who was present; and
(iii) whether any protests were made. In general, breaking
into locked property is a breach of the peace.
■■ Secured Party’s Right to Dispose of Collateral

• After default, a secured party may sell, lease, license, or Feb 2019, Essay 2
HIGH otherwise dispose of any or all of the collateral in its present July 2009, Essay 4
condition or in any commercially reasonable manner. A July 2006, Essay 7
6 of 49 Exams
debtor is liable to the extent that the proceeds from the July 2005, Essay 3
disposition are not sufficient to satisfy the debt owed. Feb 1999, Essay 7
• Notice: A secured party that disposes of collateral MUST July 1996, Essay 6
send an authenticated notification of the disposition to
the debtor and any secondary obligor. The secured party is
liable for damages for failing to provide notice, even if the
debtor had actual knowledge of the disposition. However, the
notice requirement DOES NOT apply if the collateral: (a) is
perishable; (b) threatens to decline speedily in value; or (c) is
of a type customarily sold on a recognized market.

• Disposition at Foreclosure Sale: The disposition of collateral

at a foreclosure sale: (1) transfers all of the debtor’s rights
in the collateral to a transferee for value; (2) discharges
the security interest; AND (3) discharges any subordinate
security interests (senior interests are not discharged). A
transferee that acts in good faith takes free of the rights of the
debtor, even if the secured party fails to comply with the rules
governing disposition.
• Commercially Reasonable Sale: Every aspect of a disposition
of collateral, including the method, manner, time, place, and
other terms MUST be commercially reasonable. When
deciding whether a sale is commercially reasonable, courts
will consider all facts and circumstances (including the MEE TIP
amount of advertising performed, normal commercial Apply any specific rules
practices in disposing of the particular collateral, the length concerning a secured party’s right
of time between the repossession and the sale, and the price to dispose collateral, depending
on the issue presented in the
obtained). No one factor is conclusive. essay fact pattern.
o A disposition of collateral is deemed commercially
reasonable by law if made: (a) in the usual manner
on any recognized market; (b) at the current price in
any recognized market at the time of the disposition;
OR (c) in conformity with reasonable commercial
practices among dealers in similar property.
• Secured Party’s Purchase of Collateral: Unless agreed
otherwise, a secured party may purchase the collateral at: (a)
a public sale; OR (b) a private sale only if the collateral is
(i) of a kind that is customarily sold on a recognized market,
or (ii) the subject of widely distributed standard price
quotations.
■■ Right to Collect Directly from an Account Debtor

• A secured party has the right to collect a debt directly from July 2017, Essay 3
MED an account debtor (which is a person obligated on an account, July 2004, Essay 7
chattel paper, or general intangible). Once the account July 2000, Essay 6
3 of 49 Exams debtor receives notification (authenticated by the assignor
or assignee) of an assignment, the debtor can no longer
discharge its obligation by payments to the assignor (the
original account creditor). In such an instance, the account
debtor can only discharge its obligation by payments to the
assignee. After receipt of the notification, the debtor may
request that the assignee produce proof of the assignment. If
the assignee DOES NOT comply within a reasonable time
after such request, the debtor may continue to discharge its
obligation by payments to the assignor (the original account
creditor).

I. Debtor’s Rights Upon Default
■■Damages Available to a Debtor for a Secured Party’s Failure

to Comply with Applicable Rules
• A secured party is liable for the debtor’s actual damages July 2006, Essay 7
HIGH for the amount of any loss caused by their failure to comply Feb 2004, Essay 5
with applicable rules concerning secured transactions. The July 2003, Essay 6
4 of 49 Exams
damages for loss is generally equal to expectation damages, Feb 1999, Essay 7
and may include loss resulting from the debtor’s inability to
obtain (or increased costs of) alternative financing.
• In addition, irrespective of actual damages, a debtor may
recover $500 in statutory damages for a secured party’s
failure to comply with specific provisions of Article 9 of the
UCC.
• A civil penalty is applied if the collateral is consumer goods,
wherein a debtor may recover (1) damages for loss, AND (2)
either the amount not less than (a) the credit service charge,
plus 10% of the principal amount of the obligation, or (b) the
time-price differential, plus 10% of the cash price.
• Lastly, a court may order or restrain collection, enforcement,
or a proper sale of collateral if a secured party is not
proceeding in accordance with applicable rules.
■■ Debtor’s Right of Redemption

• A debtor has the right to repay obligations and reclaim July 2006, Essay 7
MED property held by the secured party (known as redemption). To July 2003, Essay 6
redeem collateral, a debtor must: (1) fulfill all obligations
2 of 49 Exams secured by the collateral; AND (2) pay reasonable expenses
and attorney’s fees.
• A redemption may occur at any time before a secured party
has: (a) collected the collateral; (b) disposed of the collateral
or entered into a contract for its disposition; OR (c) accepted
collateral in full or partial satisfaction of the obligation it
secures.
■■ Deficiency Judgments
• Under Article 9 of the UCC, the impact of non-compliance July 2006, Essay 7
HIGH with Article 9 on recovery of a deficiency in a consumer July 2005, Essay 3
goods transaction is left to the court to determine. July 2003, Essay 6
4 of 49 Exams
• Some states apply the absolute bar rule in which the secured Feb 1999, Essay 7
party is barred from collecting any deficiency remaining after
the disposition of collateral when the secured party fails to
comply with applicable provisions for a disposition.

• Other states apply the rebuttable presumption rule. Under

this rule, if the secured party fails to comply with applicable
provisions for disposition, it is presumed that the proceeds
from the disposition are equal to the debt owed. However,
the presumption can be rebutted if the secured party shows
that the debt owed is greater than the fair market value of the
collateral at the time of disposition.
• For non-consumer transactions, Article 9 of the UCC
provides that (1) if a debtor places a secured party’s
compliance in issue, AND (2) a secured party fails to
prove that the disposition was proper, then the amount
recoverable in deficiency is limited to an amount by which
the total debt exceeds the greater of: (a) the proceeds of
the disposition; OR (b) the amount that would have been
realized if the secured party complied with the applicable
provisions. The amount of proceeds that would have been
realized is equal to the total debt UNLESS the secured party
proves that complying with the rules would have yielded a
smaller amount.

13 TORTS
MEE TIP
For any Torts essay question, assume the following:
• Unless otherwise specified in the question, assume there is NO
applicable statute.
• Assume that survival actions and wrongful death claims are available.
• Unless otherwise indicated, assume that the jurisdiction uses both: (i)
joint and several liability; and (ii) pure comparative negligence.
A. Intentional Torts
■■ Battery
• A defendant is liable for Battery when there is (1) an Feb 2011, Essay 4
HIGH intentional, (2) harmful or offensive contact, (3) with the Feb 2010, Essay 4
plaintiff’s person (including anything connected to the
2 of 24 Exams
plaintiff).
• A defendant acts intentionally when he acts: (a) with the
desire to bring about the harm/contact; OR (b) knowing
that harm/contact is substantially certain to occur. Bodily
harm is the physical pain, illness, or physical impairment
to another’s body. A bodily contact is offensive if it offends
a reasonable sense of personal dignity (analyzed under the
reasonable person standard). A claim may be supported by
nominal damages; plaintiff need not suffer actual damages.
■■ Assault
• A defendant is liable for Assault when there is (1) an 0 exams
MED intentional act, (2) that causes the plaintiff to be placed
in reasonable apprehension, (3) of imminent harmful or
0 of 24 Exams offensive contact with the plaintiff’s person.
• An act is deemed intentional if it is done: (a) for the purpose
of causing such an apprehension; OR (b) with knowledge to a
substantial certainty that such apprehension will result. The
reasonable apprehension element requires the plaintiff to
be BOTH: (i) aware of the defendant’s act; AND (ii) believe
that the defendant is able to commit the act.
• A claim may be supported by nominal damages; plaintiff
need not suffer actual damages.

13 TORTS
■■ False Imprisonment
• A defendant is liable for False Imprisonment when he (1) Feb 2012, Essay 4
MED intentionally acts, (2) to restrain plaintiff to fixed boundaries
(one with no reasonable means of escape), AND (3) the
1 of 24 Exams plaintiff is conscious of the confinement or is harmed
by it (the extent of the false imprisonment is generally
not relevant). It is immaterial whether the act directly or
indirectly causes the confinement.
• A defendant acts intentionally when he acts: (a) purposely
to bring about the confinement; OR (b) knowing that
confinement is substantially certain to occur. The restraint
may be accomplished through threats, and DOES NOT need
to be physical or stationary (only in one place). A claim may
be supported by nominal damages; plaintiff need not suffer
actual damages.
■■ Intentional Infliction of Emotional Distress

• A defendant is liable for Intentional Infliction of Emotional 0 exams
MED Distress if: (1) the defendant acted intentionally or
recklessly; (2) the defendant’s conduct was extreme
0 of 24 Exams and outrageous (conduct that transcends all bounds of
decency); (3) the defendant’s act caused extreme emotional
distress (causation); AND (4) the plaintiff actually suffered
severe emotional distress (damages).
• Where such conduct is directed at a third person, the
defendant is liable if he intentionally or recklessly causes
severe emotional distress: (a) to a member of such person’s
immediate family who is present at the time (whether or not
such distress results in bodily harm); OR (b) to any other
person present, if such distress results in bodily harm.
• An act is intentional when: (a) the person desires to
inflict severe emotional distress; OR (b) knows that such
distress is certain or substantially certain to result from the
conduct. An act is reckless if it’s a deliberate disregard of a
high risk that emotional distress will follow.
■■ Trespass to Land
• A defendant is liable for the intentional tort of Trespass to 0 exams
MED Land if (1) he intentionally, (2) either (a) enters the land in
the possession of another; (b) causes an object or a third
0 of 24 Exams person to enter the land of another; (c) remains on the
land; or (d) fails to remove an object from the land that he is
under a duty to remove.

13 TORTS
• Intent to trespass is NOT required; the ONLY intent

required is that the defendant intended to enter/remain
on the subject land. The plaintiff must be a possessor of the
land at the time the trespass takes place (i.e. owner or tenant).
• A claim may be supported by nominal damages; plaintiff
need not suffer actual damages. If plaintiff suffers actual
damages, he may recover either: (a) the decrease in value of
the property; OR (b) the cost to repair the property.
■■ Trespass to Chattels & Conversion

• A person is liable for Trespass to Chattels when he (1) 0 exams
MED intentionally interferes with another’s personal property
(including damage or preventing a party from using the
0 of 24 Exams property), AND (2) the amount of damage is small.
• A person is liable for the tort of Conversion if the amount of
interference is substantial, in which the converter is liable
for the full market value of the chattel involved.
o To determine if there is substantial interference, the
court will consider the following factors: (i) extent
and duration of dominion/control; (ii) intent to
deprive the owner of possession; (iii) the tortfeasor’s
good faith; (iv) extent and duration of resulting
interference; (v) harm done to the chattel; and (vi)
inconvenience and expense caused.
• Mistaken ownership of the property is NOT a defense to
either tort.
■■ Doctrine of Transferred Intent

• Under the Doctrine of Transferred Intent, the intent to 0 exams
MED harm one party can be transferred when: (1) the defendant
had the intent to commit a tort against one particular
0 of 24 Exams individual; AND (2) if in the act of trying to accomplish that
tort either (a) commits a different tort against that person
or (b) another person is injured – whether by the same tort
intended or a different tort that resulted.
• The doctrine of transferred intent only applies to the
intentional torts of battery, assault, false imprisonment,
trespass to land, and trespass to chattels.

13 TORTS
■■ Intentional Tort Defenses: Consent

• Consent is a defense to intentional torts, and may be express Feb 2012, Essay 4
HIGH or implied through words or conduct. Consent need not be Feb 2011, Essay 4
communicated to the actor. Apparent consent is an effective
2 of 24 Exams
defense when words or conduct are reasonably understood
to be intended as consent, such as with customary practice
or the person’s failure to object. Implied by law consent
occurs under certain special circumstances, such as medical
emergencies. However, the defendant’s actions CANNOT
exceed the bounds of the consent given. The consenting
party must have capacity, and consent may be withdrawn at
any time. Some courts hold that a person cannot consent to a
criminal act.
■■ Intentional Tort Defenses: Privileges

• Privilege is conduct that under ordinary circumstances Feb 2012, Essay 4
HIGH would subject the actor to liability, but is excused under the Feb 2011, Essay 4
circumstances. A privilege must be plead and proved by the
2 of 24 Exams
defendant. Privilege includes the following defenses listed
below. MEE TIP
• Necessity: A defendant is NOT liable for harm to the
plaintiff’s real or personal property if defendant’s acts were On the exam, apply only the
applicable privilege(s) based on
(1) necessary (or reasonably appeared to be necessary), (2) the essay question.
to prevent serious harm to a person or property. Public
necessity is when the defendant acts for the public good and
is a complete defense. Private necessity is an incomplete
privilege (the defendant will be liable for any damages caused
unless the purpose of his acts were to help the plaintiff),
and occurs when defendant is protecting his own or a few
other’s property interests. Necessity is applicable only to
intentional torts against property.
• Self-Defense/Defense of Others: A defendant is NOT liable
for harm to the plaintiff if he: (1) reasonably believed that
the plaintiff was going to harm him or another; AND (2) used
reasonable force that was necessary to protect himself or
another.
• Defense of Property: A person may use reasonable force to
defend property, but CANNOT use deadly force.
• Recapture of Chattels: An owner of chattels wrongfully taken
may take prompt action and use reasonable, non-deadly
force to recover the chattels from the wrongdoer. No force is
deemed reasonable until a demand for return has been made,
UNLESS the demand would be dangerous or futile. This
privilege is NOT applicable to recapture pertaining to a
default in an installment contract for the sale of goods.

13 TORTS
• Detain for Investigation: In most jurisdictions, shopkeepers

have the privilege of (1) temporarily detaining, (2) a person
reasonably suspected of theft, (3) in or near their store, (4)
for the purpose of an investigation. Reasonable non-deadly
force may be used to detain the individual, when a request to
remain has been made and refused.
• Privilege to Discipline: Parents may use reasonable force in
disciplining their children.
• Privilege to Arrest: A privilege to arrest is generally regulated
by statute, but is more likely to occur when the crime is
serious (a felony) and if the defendant directly observed the
crime when making the arrest.
B. Negligence
MEE TIP
■■ Prima Facie Case of Negligence State this rule at the beginning
• A prima facie case for negligence requires: (1) a duty owed to of your answer for any essay
question concerning negligence.
HIGH the plaintiff by the defendant; (2) a breach of that duty; (3)
the breach was the actual and proximate cause of the Feb 2019, Essay 1
6 of 24 Exams
plaintiff’s injuries; AND (4) damages. To make a prima facie July 2017, Essay 1
case, a party must offer sufficient evidence so that the trier July 2015, Essay 1
of fact could reasonably find that ALL of the above elements Feb 2012, Essay 4
have been met. Feb 2010, Essay 4
Feb 2009, Essay 7
■■ Affirmative Duty to Act & Rendering Aid

• Generally, there is NO duty to act affirmatively. However, July 2015, Essay 1
HIGH an affirmative duty to act will arise in certain July 2012, Essay 6
circumstances: (1) A pre-existing relationship between
2 of 24 Exams
the parties (i.e. parent-child, landowner-entrant); (2) The
defendant put the plaintiff in peril; (3) The defendant has
undertaken to rescue the plaintiff; OR (4) A duty is imposed
by law.
• A person who undertakes to rescue or aid another is liable
for injuries caused by his failure to exercise reasonable
care in doing so if: (a) the failure to exercise such care
increases the risk of harm; OR (b) the harm is suffered
because of the reliance on the person providing help or
aid. Under this standard, a person who renders aid is liable
for any bodily harm caused to the other person if: (1) aid is
discontinued; AND (2) the other person is left in a worse
position.

13 TORTS
■■ Standard of Care: Reasonable Person Standard

• Every person owes a duty to act as a reasonable Feb 2019, Essay 1
HIGH prudent person would act under like circumstances. A July 2017, Essay 1
reasonable prudent person takes appropriate measures to Feb 2012, Essay 4
5 of 24 Exams
avoid foreseeable risks. This duty of care is owed to all Feb 2010, Essay 4
foreseeable plaintiffs. Following community customs and Feb 2009, Essay 7
statutory requirements may be relevant as to what conduct is
reasonable, but are NOT dispositive. Statutory compliance
DOES NOT establish reasonable care or freedom from fault;
it is merely evidence of reasonable care. The reasonable
person standard also applies to business entities.
• A person with a physical disability must act as a reasonable
person with the disability would act. However, a person with
below average intelligence or a mental disability must act
as a reasonable person without the disability would act.
■■ Standard of Care: Children

• Children are capable of negligence, but are held to a different July 2015, Essay 1
HIGH standard than adults. Children are held to the standard of Feb 2009, Essay 7
care of a hypothetical child of similar age, experience, and
2 of 24 Exams
intelligence acting under similar circumstances.
• If a child is engaged in an adult activity, the child has a duty
to act as a reasonable adult would under the circumstances
with respect to that activity. Under the Restatement (Third)
of Torts, the following are deemed adult activities: driving a
car, tractor, motorcycle, or other motorized vehicle (such as
motorbikes/scooters and snowmobiles).
■■ Standard of Care: Professionals

• A professional (doctors, nurses, lawyers, accountants, July 2016, Essay 3
HIGH engineers, architects, psychologist/psychotherapist) July 2012, Essay 6
owes a duty to act with the knowledge and skill as an
2 of 24 Exams
average member of that profession practicing in a similar
community. One holding himself out as a specialist should be
held to the standard of care and skill of the average member MEE TIP
of the profession practicing the specialty, taking into account
the advances in the profession. Expert testimony is generally One the exam, apply any rules
specific to the type of profession
required to show that the professional complied or breached (i.e. doctor) if said profession is
the standard of care. included in essay question.

13 TORTS
• A medical doctor is held to the degree of care and skill of

the average qualified practitioner. Most courts analyze the
doctor’s conduct under national standards rather than those
in the doctor’s locality or community. A doctor has a duty to
obtain informed consent from his patient before treatment,
which requires the doctor to disclose risks of treatment that a
reasonable patient would want to know.
• A psychologist/psychotherapist has a duty to warn potential
victims when their patient makes a credible threat to
others. In most states, a therapist will liable for a victim’s
injury if (1) the therapist believed the patient posed a
real risk, (2) of serious physical violence, (3) to a readily
identifiable victim, and (4) the therapist failed to take steps to
warn the victim.
■■ Standard of Care: Land Owner/Possessor’s Duty to Entrants

• Some states require landowners to exercise reasonable care July 2015, Essay 1
HIGH to ALL entrants upon his land to take appropriate measures Feb 2010, Essay 4
to avoid foreseeable risks. Other states still determine
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what duty of care is owed by a landowner by considering
the type of person (trespasser, licensee, or invitee) is on the MEE TIP
property. The same rules apply to a possessor of land (i.e. a
tenant or tenant business owner). On the exam, apply the relevant
landowner standard of care
o If the entrant is an Undiscovered Trespasser (one
rule(s) based upon the injured
who enters the land of another without permission), in person’s status in the essay
most jurisdictions, no duty is owed by the landowner. question.
o If the entrant is an Anticipated Trespasser (one
who enters the land of another without permission,
but which may be expected by the landowner),
the landowner must: (1) use reasonable care in
operations on the property; AND (2) warn of (or
make safe) highly dangerous artificial conditions that
the landowner knows of.
 Under the Attractive Nuisance Doctrine,
a land owner/possessor owes a duty to
child trespassers to make the premises
reasonably safe or warn of hidden dangers
on his land. A land owner/possessor is labile
for the harm to a trespassing child if: (1)
he knows (or should know) of a dangerous
artificial condition on his land that is likely
to cause death or serious bodily injury; (2)
he knows (or should know) that children
are likely to frequent the area; (3) children
are unlikely to discover the condition or

13 TORTS
appreciate the risks involved; (4) the risk of

harm outweighs the expense of making the
condition safe; AND (5) he fails to exercise
reasonable care in eliminating the danger or
protecting children from it. The attractive
nuisance doctrine is less likely to apply if the
child engages in an adult activity.
o If the entrant is a Licensee (invited on the owner’s
property as a social guest), the landowner must: (1)
exercise reasonable care in operations on the
property; AND (2) warn of (or make safe) dangerous
conditions that are known to the landowner, but are
not apparent to a guest. A person is a licensee if he
reasonably believed, based on the owner’s conduct or
words, that he was permitted to enter the owner’s land.
o If the entrant is an Invitee (invited onto the property
for the owner’s benefit, such as a business), the
landowner owes all the duties he would to a
licensee. In addition, the landowner has a duty
to make reasonable inspections of the property
to find and make safe non-obvious dangerous
conditions. A landowner is liable for failing to
warn of dangerous conditions that would have been
discovered upon reasonable inspection.
■■ Standard of Care: Landlord’s Duty to Tenants

• Unless otherwise provided by contract or law, a landlord July 2012, Essay 6
MED generally has NO duty to maintain the leased
premises. However, a landlord must warn the tenant of any
1 of 24 Exams latent defects.
• Under the common law, a landlord has NO duty to provide a
safe premises so that tenants may be safe from criminal acts
of third-persons. HOWEVER, modern courts have held that
landlords have a duty to take reasonable precautions to
protect tenants against foreseeable attacks. This has been
applied to schools having a duty to protect tenant students
from foreseeable criminal activity.
■■ Negligence Per Se
• Under the doctrine of negligence per se, a statute may be used Feb 2019, Essay 1
HIGH to substitute the duty of care. If negligence per se applies, the Feb 2015, Essay 1
duty and breach elements are established when the defendant Feb 2009, Essay 7
3 of 24 Exams
breaches the statute. Then the plaintiff need only prove
causation and damages.

13 TORTS
• To use negligence per se, plaintiff must show: (1) that the
statute’s purpose is to prevent the type of harm that the
plaintiff has suffered; AND (2) that the plaintiff is in the
class of persons the statute seeks to protect.
• There are two exceptions when the standard of care will
NOT be substituted for the statute even when the above test
is met. The first is when the defendant’s compliance with
statute would have been more dangerous than the violation
of it. The second is when compliance with the statute is
impossible.
■■ Res Ipsa Loquitur

• When the breach element of negligence is very difficult to Feb 2019, Essay 1
HIGH prove, the court may allow a plaintiff to use the doctrine of Feb 2008, Essay 2
“res ipsa loquitur” (which means the thing speaks for itself) to
2 of 24 Exams
prove the breach element.
• Traditional Test: To be applicable, a plaintiff must show: (1) MEE TIP
that her injury is of a sort that typically does not occur in the
absence of negligence; (2) the instrumentality (thing/object) Unless the essay question
states otherwise, you may apply
which caused her injury was in the defendant’s exclusive any one of the three Res Ipsa
control; AND (3) that the plaintiff NOT cause or contribute Loquitur tests: Traditional Test,
to the injury. Restatement (Second) Test, or
• Restatement (Second) Test: Res Ipsa Loquitur is applicable Restatement (Third) Test. This
occurred on the Feb. 2019 MEE
when: (1) the event is of a kind that ordinarily does not (Essay 1, Point Three), in which
occur in the absence of negligence; (2) other responsible the official analysis stated:
causes are sufficiently eliminated by the evidence (including “Answers relying on any of these
the conduct of the plaintiff and third persons); AND (3) the variations should be given full
credit…”
indicated negligence is within the scope of the defendant’s
duty to the plaintiff. Plaintiff need not show that reasonable
care would completely eliminate the risk; only that it
ordinarily does not occur in the absence of negligence.
• Restatement (Third) Test: The factfinder may infer the
defendant’s negligence when (1) the accident causing the
plaintiff’s harm is a type that ordinarily happens as a result of
the negligence of a class of actors, (2) of which the defendant
is the relevant member.
• When an action is against multiple defendants, res ipsa
loquitur generally CANNOT be used to show liability of any
particular defendant.

13 TORTS
■■ Causation: Actual and Proximate Cause

• A plaintiff must show that the defendant’s conduct was BOTH Feb 2019, Essay 1
HIGH the actual and proximate cause of the injury. Actual cause is July 2017, Essay 1
the “but for” cause – but for defendant’s negligence, plaintiff July 2015, Essay 1
6 of 24 Exams
would not have been injured. Under the Substantial Factor July 2013, Essay 2
Test, something that is a substantial factor in bringing about July 2012, Essay 6
the injury is an actual cause (even if the injury had multiple Feb 2009, Essay 7
causes). Proximate cause is the legal cause, which means
that the injury must have been a foreseeable result of the
breach. A defendant is NOT liable for harms that are too
remote from the defendant’s conduct.
■■ Proximate Cause: Intervening Causes

• Any act that occurs after the defendant’s breach that Feb 2019, Essay 1
HIGH contributes to the harm is an intervening cause. Intervening July 2017, Essay 1
causes that are dependent on (a natural reaction to) the July 2013, Essay 2
5 of 24 Exams
defendant’s wrongful acts are usually foreseeable. If the July 2012, Essay 6
intervening cause resulted in an unexpected injury to the Feb 2009, Essay 7
plaintiff, it is usually deemed unforeseeable and will absolve
the defendant of liability to the plaintiff.
• Intervening medical malpractice is ALWAYS deemed
foreseeable. Intervening criminal acts are usually not
foreseeable UNLESS: (a) the defendant should have
anticipated the criminal act; OR (b) if the defendant’s conduct
makes the criminal act more likely to occur. Courts have
held that injuries sustained from a plaintiff running from
the danger are foreseeable. Similarly, an injured rescuer’s
injuries have been deemed foreseeable under the “danger
invites rescue” doctrine.
■■Causation: Eggshell Plaintiff Rule & Emotional Distress
Stemming from Physical Injury
• The Eggshell Plaintiff Rule means that a tortfeasor takes his July 2012, Essay 6
HIGH victim as he finds him. Thus, a defendant is liable for ALL Feb 2011, Essay 4
harm a plaintiff suffers as a result of his conduct, even if Feb 2010, Essay 4
3 of 24 Exams
the plaintiff suffered from a preexisting mental or physical
condition that made the harm different or greater than what a
normal person might suffer.
• A plaintiff is entitled to recover any emotional distress
damages stemming from a physical injury. However, a
plaintiff will need to establish the tort of Negligent Infliction
of Emotional Distress to recover mental distress damages not
related to any physical injury.

13 TORTS
C. Defenses to Negligence Claims
■■ Comparative Negligence & Contributory Negligence

• Under pure comparative negligence, the plaintiff’s July 2015, Essay 1
HIGH negligence or assumption of risk will NOT bar Feb 2009, Essay 7
recovery. However, it is a factor in determining the
2 of 24 Exams
percentage of fault of each party, and will reduce the
plaintiff’s recoverable damages by the percentage of his own MEE TIP
fault.
• In a partial comparative negligence jurisdiction, if a Unless otherwise indicated
on the exam, only apply pure
plaintiff contributed less than 50% to his own injury, then
comparative negligence. Do
his damages are reduced by the percentage of fault that is not apply partial comparative
attributable to him. However, if the plaintiff contributed negligence or contributory
more than 50%, then the plaintiff’s claim is barred. negligence unless instructed
otherwise.
• In a contributory negligence jurisdiction, a plaintiff
CANNOT recover damages if he contributed to his own
injury. However, two exceptions to this rule exist: (a)
when the defendant had the last opportunity to avoid the
accident; OR (b) if the defendant was reckless. Contributory
negligence is only applied in a few states.
■■ Assumption of Risk
• Assumption of risk is a defense to negligence, and applies if 0 exams
MED the plaintiff (1) voluntarily assumed (2) a known risk. The
assumption of risk may be: (a) express – by agreement; OR
0 of 24 Exams (b) implied – where an average person would appreciate the
risks involved.
D. Negligent Infliction of Emotional Distress
■■ Negligent Infliction of Emotional Distress

• Generally, there are three scenarios where a plaintiff may Feb 2012, Essay 4
HIGH recover for negligent infliction of emotional distress: (a) Feb 2002, Essay 5
a near miss case; (b) a bystander claim; or (c) in certain
The Feb 2002 MEE
2 of 24 Exams
situations where a pre-existing relationship exists. (Essay 5) tested the
• In order to recover in a near miss case: (1) there must be subject of Family Law,
negligence by the defendant, (2) which creates a foreseeable but the tort law rule
of Negligent Infliction
risk of physical injury, (3) the plaintiff must be in the zone of Emotional Distress
of danger, AND (4) the plaintiff must manifest physical was tested.
symptoms.

13 TORTS
• In order to recover in a bystander claim: (1) there must

be negligence by the defendant; (2) the plaintiff must be
a contemporaneous witness to a negligent bodily injury
inflicted on a close family member (i.e. parent, child,
spouse); AND (3) the plaintiff must manifest physical
symptoms (some jurisdictions do not require this). A few
jurisdictions require that the plaintiff be in the zone of danger
to recover.
• The last scenario where a plaintiff can recover is where: (1)
there is a pre-existing relationship between the plaintiff and
defendant; AND (2) the negligent act can foreseeably cause
distress. Recovery is rare, and is usually only available in
egregious situations.
E. Liability for Acts of Others (Vicarious Liability)
Vicarious Liability of Employer: Doctrine of Respondeat

■■
Superior
• Under the doctrine of respondeat superior, an employer is Feb 2015, Essay 1
HIGH vicariously liable for an employee’s negligent acts if the July 2013, Essay 2
employee was acting within the scope of employment. Feb 2010, Essay 4
• An employee acts within the scope of employment Feb 2006, Essay 2
5 of 49 Exams
when: (a) performing work assigned by the employer; OR Feb 2003, Essay 4
(b) engaging in a course of conduct subject to the employer’s
The Vicarious Liability
control. Factors to determine if conduct is within the rules have appeared
scope of employment include whether: (i) it is the kind the on both Agency and
Torts essays. As such,
employee is employed to perform; (ii) it occurs substantially they are listed in both
within the authorized time and space limits; and (iii) it subjects, and the total
is motivated (in whole or part) by a purpose to serve the number of exams (i.e.
“x of 49 Exams”) for
employer. Additionally, conduct is within the scope of these rules are higher
employment if it is of the same general nature as that because they have
been testable since
authorized, or incidental to the conduct authorized. Conduct February 1995.
is NOT outside the scope of employment merely because an
employee disregards the employer’s instructions.
• An employee’s act is NOT within the scope of employment
when: (1) it occurs within an independent course of
conduct; AND (2) is not intended by the employee to serve
any purpose of the employer.
• An employee’s intentional torts are NOT generally
within the scope of employment UNLESS the act: (a) was
specifically authorized by the employer; (b) was driven
by a desire to serve the employer; OR (c) was the result of
naturally occurring friction from the type of employment.

13 TORTS
■■Vicarious Liability of Employer: Liability Where Respondeat

Superior Doctrine is Inapplicable
• In certain situations, an employer can be held liable even if July 2013, Essay 2
HIGH the doctrine of respondeat superior (an employer/employee Feb 2003, Essay 4
relationship and conduct within the scope of employment) is
2 of 49 Exams
inapplicable. Such situations include when: (a) the employer
intended the conduct or consequences; (b) the employer
was negligent or reckless in selecting, training, retaining,
supervising, or controlling the employee; (c) the conduct
involved an employer’s non-delegable duty to an injured
person that it had a special relationship with; OR (d) the
employee had apparent authority, the agent’s appearance of
authority enabled the agent to commit the tort, and the third-
party relied on that authority. Apparent authority is created
when: (1) the employer holds the employee out as having
authority; AND (2) the third-party reasonably believes the
employee has authority to act.
■■ Employee vs. Independent Contractor

• The determination of whether a person is an employee or an July 2017, Essay 1
HIGH independent contractor centers on whether the principal had Feb 2015, Essay 1
the right to control the manner and method in which the job is Feb 2006, Essay 2
5 of 49 Exams
performed. July 2004, Essay 5
• An employee is an agent whom the employer controls (or Feb 2003, Essay 4
has the right to control) the manner and means of the agent’s
performance of work. An independent contractor is a person
who contracts with another to do something for him, but who
is not controlled nor subject to the other’s right to control with
respect to his performance. The contractor may or may not be
an agent.
• Generally, if the principal has substantial control in dictating
the manner and method in which the job is performed, then
the person is deemed to be an employee of the principal. In
contrast, a person subject to less extensive control is
considered an independent contractor.
■■ Vicarious Liability for Acts of Independent Contractors

• Generally, a principal is NOT vicariously liable for the torts July 2017, Essay 1
HIGH of an independent contractor. However, there are several July 2004, Essay 5
exceptions to the general rule. A principal will be liable
2 of 49 Exams
for torts committed by an independent contractor if: (1) the
independent contractor is engaged in an inherently hazardous
activity; (2) the duty owed by the principal is non-delegable
(i.e. the duty of care owed to an invitee); OR (3) through

13 TORTS
the doctrine of estoppel where the principal holds the

independent contractor out as his agent to a third-party,
the third-party reasonably relied on the care and skill of the
contractor, and the third-party suffered harm as a result of the
contractor’s lack of care or skill.
F. Liability of Multiple Defendants
■■ Joint and Several Liability

• In a jurisdiction permitting joint and several liability, if Feb 2019, Essay 1
MED multiple defendants are the proximate cause of a single
indivisible harm, then the plaintiff may recover the entire
1 of 24 Exams amount of his damages from any single defendant (but may
not receive a double recovery). A defendant who pays more
than his fair share of the damages may bring an action for
contribution against the other defendants for the difference.
■■ Indemnification
• A defendant is entitled to indemnification (full reimbursement Feb 2015, Essay 1
MED for damages paid to another party) when the defendant
is a passive tortfeasor and seeks to assert his claim
1 of 24 Exams against an active tortfeasor. A defendant entitled to
indemnification is entitled to recover the full amount
he paid (or may have to pay) to the plaintiff from the
active tortfeasor. Indemnification is generally available in
situations of vicarious liability or when it is provided for by
contract. Some states have limited an employer’s right to
seek indemnification from employees in certain situations.
■■ Contribution
• Contribution is a theory of recovery when there are joint 0 exams
MED tortfeasors. Under joint and several liability, a plaintiff
Although this rule
can recover 100% of the damages from any one of the has not been tested
0 of 24 Exams joint tortfeasors. However, a joint tortfeasor may seek to date, the concept
contribution from other joint tortfeasors if he pays more of Contribution was
discussed in the
than his percentage share of liability. The amount that can “Note” section of the
be recovered in contribution is based on pure comparative Feb 2015 MEE (Essay
1, Point Four).
fault, and a defendant cannot recover from another joint
tortfeasor more than that tortfeasor’s percentage share of fault.

13 TORTS
■■Doctrines of Alternative Liability, Joint Enterprise, & Market

Share Liability
• Three doctrines exist that allow a jury to find multiple July 2016, Essay 3
HIGH defendants liable even if the plaintiff cannot show which Feb 2008, Essay 2
defendant’s conduct caused his injury.
• Doctrine of Alternative Liability: The doctrine of alternative
2 of 24 Exams
liability allows the jury to find ALL defendants liable if (1)
multiple defendants are negligent, (2) but it is unclear which
one caused the plaintiff’s injuries.
• Doctrine of Joint Enterprise: The doctrine of joint venture or
joint enterprise allows the negligence of one defendant to
be imputed to the others if: (1) multiple defendants were
engaged in a common project or enterprise; AND (2) all
defendants have made an explicit or implied agreement to
engage in tortious conduct.
• Doctrine of Market Share Liability: Market share liability
is appropriate where the following factors are present: (1)
all the named defendants are potential tortfeasors; (2) the
allegedly harmful products are identical and share the same
defective qualities (or were “fungible”); (3) the plaintiff
is unable to identify which defendant caused her injury
through no fault of her own; AND (4) substantially all of the
manufacturers which created the defective products during
the relevant time are named as defendants. If applicable,
the manufacturers (of the product identical to the one which
harmed the plaintiff) are liable in their proportion to their
share of the market at the time plaintiff’s injury occurred,
regardless of actual causation. The rationale for this theory
is that each manufacturer’s liability would approximate its
responsibility for the injuries caused by its own products.
G. Economic & Dignitary Torts
■■ Defamation
• The elements required to prove a prima facie case of
MED defamation are (1) a false defamatory statement (a
statement that tends to harm the reputation of another), (2)
0 of 24 Exams of and concerning the plaintiff made by the defendant,
(3) publication by the defendant to a third party, AND (4)
damages. A person CANNOT be found liable for defamation
of a dead person.

13 TORTS
• For slander (an oral defamatory statement), the plaintiff

ALWAYS needs to prove special damages (the actual 0 exams
damages suffered), unless the statement falls within one of the
slander per se categories. If it does, then the plaintiff DOES A Constitutional Law
question concerning
NOT need to prove special damages, unless the defamatory defamation was
nature of the statement is not clear on its face. tested on the July
2008 MEE (Essay 2,
o The four slander per se categories are: (a) impugning Point One), but Torts
the business integrity or skill of the plaintiff; (b) was not tested. Even
a statement of unchastity about an unmarried though the question
involved the tort
woman; (c) a statement that the plaintiff has or had a of defamation, the
loathsome disease; or (d) attributing to the plaintiff a rules tested were
solely the free speech
crime of moral turpitude. limits on defamation.
• For libel (defamation embodied in some permanent format), Additionally, the bar
the plaintiff DOES NOT need to prove special damages, examiners noted
the subject area
unless: (1) the statement does not fall within one of the for the essay as
slander per se categories; AND (2) the defamatory nature of “Constitutional Law”.
the statement is not clear on its face.
• If the plaintiff is a public official or public figure (either
having injected herself into a public controversy or having
achieved widespread notoriety) there is a heightened standard
to prove defamation, which requires the plaintiff to prove
that the defendant spoke with either (a) recklessness as
to the truth of the statement, or (b) with knowledge of its
falsity. Negligence is insufficient to subject the speaker to
liability.
• If the plaintiff is a private figure speaking about a matter of
public concern, the plaintiff must also prove that the speaker
was negligent.
• Defenses: Even if a defamatory statement has been published,
a defendant will NOT be held liable if the defense of
privilege applies. Absolute Privilege is a complete defense,
and applies to statements made: in judicial proceedings,
between spouses, by executive branch officials, and during
legislative proceedings. Qualified Privilege (also referred to
as Conditional Privilege) applies when: (1) the statement is
conditionally privileged; AND (2) the privilege is not abused
(the person did not act with malice). Qualified privilege
applies to statements: by former/prospective employers
when made in good faith and for a legitimate purpose; in
governmental reports of official proceedings; during
testimony in legislative proceedings; in self-defense; and to
warn others about a harm or danger.

13 TORTS
■■ Invasion of Privacy Torts

• Misappropriation of name or picture occurs when the 0 exams
MED defendant (1) used the plaintiff’s name or likeness, (2) for
the defendant’s commercial advantage (usually limited to
0 of 24 Exams promoting a product or service). Newsworthiness is a defense
to misappropriation.
• False light occurs when the defendant (1) causes widespread
dissemination, (2) of the plaintiff’s beliefs, thoughts,
or actions, (3) in a false light, (4) that would be highly
objectionable to a reasonable person. If a plaintiff is a public
figure or involves a matter of public concern, the plaintiff
MUST show actual malice (knowledge of the falsity or
reckless disregard).
• Intrusion of privacy occurs when: (1) the defendant intrudes
into the private affairs of the plaintiff; (2) a plaintiff has a
reasonable expectation of privacy; AND (3) the intrusion
is highly objectionable to a reasonable person (i.e. reading
private mail, illegal wiretapping). Communication to a third-
party of the private affairs is NOT needed for the claim to be
actionable.
• Public disclosure of private facts occurs when the defendant
(1) caused widespread dissemination, (2) of truthful private
information, (3) that would be highly objectionable to a
reasonable person. Newsworthiness is a defense unless
actual malice is present. The defense of absolute privilege
applies for information taken from official public documents.
■■ Intentional Interference with Business Relations

• To state a prima facie case for intentional inference with 0 exams
MED business relations, a plaintiff must show that: (1) there was
a contract or business expectancy; (2) the defendant knows
0 of 24 Exams of the contract/expectancy; (3) the defendant intentionally
induces another party to breach the contract or terminate
the relationship; (4) a breach occurs; AND (5) the plaintiff
suffered damages.
• Defenses: A defendant may assert any of the following
defenses to such a claim: Defense of legitimate competitive
activity (no dishonest, wrongful, or illegal acts were
used); Giving truthful information to another; Having a
financial interest in the party that breached the contract or
terminated the relationship; and Honestly giving requested
advice (usually in the context of a “special relationship” such
as attorney and client, parent and child, or clergy and penitent.

13 TORTS
■■ Intentional & Negligent Misrepresentation

• Intentional Misrepresentation: To state a prima facie case 0 exams
MED for intentional misrepresentation, a plaintiff must show: (1)
misrepresentation of a material fact by the defendant; (2) the
0 of 24 Exams defendant knew that the statement was false (scienter); (3)
intent of the defendant to induce the plaintiff; (4) actual and
reasonable reliance by the plaintiff; AND (5) damages.
• Negligent Misrepresentation: To state a prima facie case
for negligent misrepresentation, a plaintiff must show: (1)
a misrepresentation (false statement of a material fact) by
the defendant; (2) supplied for the guidance of others in a
business transaction; (3) the defendant knew or should
have known that the information was supplied to guide
the plaintiff in his business transactions; (4) the defendant
was negligent in obtaining or communicating the false
information; (5) actual and reasonable reliance by the
plaintiff, AND (6) the false information proximately caused
plaintiff’s damages.
• Silence is generally NOT actionable. Generally, there is
no duty to disclose information, UNLESS: (a) a fiduciary
relationship exists; (b) it is necessary to correct an earlier
mistake; (c) active concealment of a material fact occurs; OR
(d) a person is selling real property and knows material facts
that affect the value of the property (that the buyer is unaware
of and cannot reasonably discover).
■■ Public and Private Nuisance

• A public nuisance is (1) an unreasonable interference, 0 exams
MED (2) with the health, safety, or property rights, (3) of the
community. To recover damages, the injured party MUST
0 of 24 Exams show actual damages. To constitute a public nuisance, the
nuisance must affect a considerable number of people or an
entire community or neighborhood.
• A private nuisance is (1) a substantial and unreasonable
interference, (2) with a person’s use or enjoyment of her
property. The nuisance must be offensive, inconvenient, or
annoying to a reasonable person.
• Plaintiff will be entitled to damages or an injunction to
prevent the nuisance (if damages are insufficient). The
primary defenses to the tort of nuisance are: (1) Coming
to the Nuisance – a residential landowner knowingly came
into a neighborhood with the nuisance; and (2) Statutory
Compliance.

13 TORTS
H. Common Law Strict Liability
■■ Strict Liability: Wild & Domestic Animals

• A owner of a domestic animal will NOT be strictly liable 0 exams
MED for harm caused by the animal UNLESS the owner has
knowledge of the animal’s vicious propensities. Domestic
0 of 24 Exams animals include dogs, cats, and farm animals. However, an
owner of a wild animal is subject to strict liability for harm
caused by the animal, regardless of the safety precautions
taken by the owner.
• An animal owner is strictly liable for the trespass and
resulting property damage caused by his animals (if
reasonably foreseeable).
■■ Strict Liability: Abnormally Dangerous Activity

• A defendant is strictly liable for damages caused to a plaintiff July 2017, Essay 1
MED when engaging in an abnormally dangerous activity (known
as an ultrahazardous activity under the First Restatement).
1 of 24 Exams Under the Third Restatement, an abnormally dangerous MEE TIP
activity is one that: (1) is not of common usage in the
community; AND (2) creates a foreseeable and highly Using only the Third Restatement
test is sufficient when writing
significant risk of physical harm even when reasonable care your essay answer for a Strict
is exercised by all actors. Liability – Abnormally Dangerous
• Examples of an abnormally dangerous activity include Activity issue. In the “Note”
blasting and the use of explosives. Courts are divided on section of the official analysis for
the July 2017 MEE (Essay 1, Point
classifying a legal fireworks display as abnormally dangerous One), the examiners stated that
– some courts have held that such displays create a significant “A good answer need not analyze
risk of harm and are not a matter of common usage (similar each [Restatement] theory
discussed above.” (emphasis
to blasting), while other courts have held that the value to the
added).
community outweighs the dangerous attributes (which is a
factor under the Second Restatement test).
I. Products Liability
■■Strict Products Liability: Liability for Manufacturing Defect, July 2016, Essay 3
Design Defect, & Failure to Warn Feb 2011, Essay 4
• Under Strict Products Liability, a commercial supplier of a Feb 2008, Essay 2
HIGH defective product is subject to strict liability for any harm

caused by the product, regardless of any wrongdoing or
3 of 24 Exams
negligence. A claim for strict products liability requires
the plaintiff to show: (1) the product was defective
(manufacturing defect, design defect, or failure to warn)
when it left the hands of the manufacturer or seller; (2) the
product was not altered when it reached the plaintiff; (3) the

13 TORTS
product caused an injury to plaintiff when it was being used

in an intended or unintended foreseeable use; AND (4) the
defendant is a commercial supplier who routinely deals in MEE TIP
goods of this type. Three primary theories are
• The plaintiff DOES NOT have to be a purchaser of the available to hold a defendant
product to assert a claim for strict products liability (no privity liable for a product that causes
harm: (1) Strict Products
is required). Damages for personal injuries and property Liability; (2) Negligence; and
damage may be recovered. Recovery solely for economic loss (3) Breach of Warranty. If an
is NOT allowed. essay question does not specify
• Proving that the product was defective is based upon one of or point to which theory applies,
then you must analyze the issues
three theories of strict products liability: (a) manufacturing under ALL three products liability
defect, (b) failure to warn, OR (c) design defect. theories
o Evidence of a manufacturing defect requires that (1)
the product differs from the intended design (some
defect in manufacturing/production); AND (2) it is
more dangerous than if made properly. A harmful
ingredient in a food product constitutes a defect if
a reasonable consumer would not expect the food
product to contain that ingredient.
o Evidence of a failure to warn requires that (1) the
plaintiff was not warned of the risks regarding use of
the product, (2) which are not obvious to an ordinary
user but known to the designer/manufacturer. A
warning must be proportionate to the risk involved
with normal use of the product.
o A design defect exists if there was a way to build the
product that: (1) is safer; (2) is more practical; AND
(3) has a similar cost. When a design defect is
alleged, the trier of fact (jury or court) must balance
the alternative designs available (including their cost
and effect on utility) against the risk to consumers.
• Definition of Commercial Supplier: A strict products
liability suit may only be brought against a commercial seller
or distributor of goods. A commercial seller or distributor
is any person or entity who is engaged in the business of
selling goods of the type (routinely sells such goods). Casual
sellers and service providers are NOT commercial suppliers,
and a strict products liability action CANNOT be maintained
against them. Any commercial seller in the distribution
chain (including a retailor or wholesaler) is deemed to be a
commercial supplier, and a strict products liability action may
be brought against them regardless if there is privity with the
plaintiff.

13 TORTS
■■ Products Liability: Liability for Negligence

• A negligence claim based on a defective product requires: (1) July 2016, Essay 3
MED a duty owed to the plaintiff; (2) a breach of that duty; (3)
causation (actual and proximate cause); AND (4) damages.
1 of 24 Exams • Product suppliers (manufacturers, distributors, retailors,
sellers) owe a duty to all foreseeable users of its products,
and MUST act as a reasonably prudent supplier of the
same type of product. A breach will be found when a
supplier’s negligence results in the supply of a defective
product. Suppliers are liable for ALL foreseeable misuses
of their product; a misuse will only cut the chain of liability
if it was not foreseeable. Any manufacturer or seller may
be liable, BUT it must be shown that their conduct was
negligent (i.e. caused the defect, their reasonable inspection
of the product would have discovered the defect).
• Damages for personal injuries and property damage may
be recovered. Recovery solely for economic loss is NOT
allowed.
■■ Products Liability: Liability for Breach of Warranty

• A products liability case may be based on a breach of express July 2016, Essay 3
MED warranty or an implied warranty.
o The Implied Warranty of Merchantability requires
1 of 24 Exams that ALL goods sold by a merchant (a person dealing
in goods of the kind) MUST be fit for their ordinary
purpose. In such action, the only issue is whether the
product was merchantable when sold (fault or how the
product became unmerchantable is irrelevant).
o An Implied Warranty of Fitness for a Particular
Purpose is created when: (1) a seller knows or has
reason to know of the buyer’s particular purpose for
which the goods are required; AND (2) the buyer
relies on the seller’s skill or judgment to select or
furnish suitable goods. If the above elements are met,
the goods MUST be fit for the particular purpose of
the buyer, otherwise there is a breach of warranty.
o A seller is liable for a breach of an Express Warranty
she makes to a buyer. An express warranty is created
when (1) a seller makes an affirmation of fact,
promise, or description, or provides a sample, (2)
which relates to the goods, and (3) it becomes part of
the basis of the bargain.
• When a breach occurs, the seller may be held liable for any
damages resulting from personal injury, property damage,
and economic loss. Disclaimer of a warranty is usually not
effective for a personal injury action.

14 TRUSTS & FUTURE INTERESTS
UTC = Uniform Trust Code
UPC = Uniform Probate Code
A. Trust Creation
■■ Trust Formation Elements

• A valid express trust requires: (1) a definitive beneficiary Feb 2013, Essay 8
HIGH (the beneficiary can be ascertained now or in the future); (2) Feb 2007, Essay 1
a settlor with capacity; (3) an intent to create a trust; (4) Feb 2006, Essay 1
a trustee; (5) a valid trust purpose; (6) trust property July 2005, Essay 5
7 of 49 Exams
(the res); AND (7) compliance with any State formalities July 2004, Essay 1
(i.e. signed in front of notary). July 2001, Essay 2
o The same execution formalities for a will (i.e. two Feb 1997, Essay 7
witnesses) are NOT required to create or amend a
trust. Under the Uniform Trust Code, no execution
formalities are required.
• Beneficiaries can be natural persons, corporations, or other
organizations.
• Intent to create a trust may be established by a promise that
creates enforceable rights in a person who (immediately or
later) holds these rights as trustee. An oral promise supported
by consideration is sufficient to create enforceable rights,
unless the State requires certain trust formalities or the statute
of frauds applies.
• The Trustee must have duties to perform, and the same person
CANNOT be the sole trustee and sole beneficiary. Although a
trust must have a named trustee, the trust will NOT fail solely
because that person refuses to act as trustee, dies, is removed,
or resigns. In such instance, the court will appoint a new
trustee.
• A trust is not created until it receives valid property. The
property interest does not need to be substantial, and does not
have to be transferred contemporaneously with the signing
of the trust instrument. A trust instrument signed during the
settlor’s lifetime is valid even if the property was transferred
to the trustee at a much later date, including after the settlor’s
death (i.e. through a pour-over provision in a will).
■■ Precatory Language & Promises to Create a Trust

• Precatory language are words in a will or trust (such as July 2004, Essay 1
MED “hope” or “request”) that merely express a settlor’s desire July 2001, Essay 2
regarding the disposition of his property. Such words DO Feb 1996, Essay 2
3 of 49 Exams
NOT create a legal obligation to act in accordance with that
desire, and will not create a valid trust. Instead, there MUST
be specific settlor intent. When there is a familial or fiduciary
relationship between the parties, the court may presume the
settlor intended to create a legal obligation.

• Similarly, a promise to create a trust in the future is

unenforceable UNLESS the promise is deemed to be a valid
contract (mutual assent, consideration, and no defenses to
formation).
B. Types of Trusts
■■ Revocable & Irrevocable Trusts

• The trust instrument may state whether the trust is irrevocable Feb 2013, Essay 8
HIGH or revocable by the settlor. If no designation is set forth, July 2012, Essay 1
then state law will govern whether the trust is revocable or July 2007, Essay 8
irrevocable by default. July 2002, Essay 7
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• The majority view is that trusts are irrevocable by default
UNLESS expressly stated otherwise. Generally, an
irrevocable trust CANNOT be modified or revoked by the
settlor after its creation.
• The minority view and the Uniform Trust Code (UTC)
provides that a trust is revocable by default UNLESS stated
otherwise.
■■ Testamentary Trusts
• A Testamentary Trust may be created through the provisions Feb 2003, Essay 6
LOW of a settlor’s will, and the trust does not take effect until the
settlor’s death.
• In order to create a Testamentary Trust: (1) the will must
1 of 49 Exams
state the essential trust terms (beneficiaries, purpose, and
trust property); AND (2) intent to create a trust must be
found from either (a) the express terms of the will, or (b)
incorporation by reference of a document/writing in existence
at the time the will was executed.
■■ Pour-over Provision in a Will

• A pour-over provision in a will gifts property to a previously Feb 2013, Essay 8
HIGH established trust. The property is distributed according July 2008, Essay 6
to the terms of the trust. A pour-over will provision is July 2002, Essay 7
distinguished from a testamentary trust because it does not Feb 2006, Essay 1
5 of 49 Exams
create a trust. Instead, the pour-over will transfers property July 1997, Essay 2
to a trust already in existence. As such, a pour-over will must
be connected to an inter vivos trust (a trust made during the
testator’s life).
• A testamentary disposition to an inter-vivos trust is valid, even
if the trust instrument is amendable or revocable. But, that
disposition shall be given effect in accordance with the terms
of the trust instrument (including an amendment thereto) as it

appears on the date of the testator’s death. Unless otherwise

provided in a will, a revocation or termination of the trust
before the testator’s death causes the gift to lapse.
■■ Charitable Trusts
• A Charitable Trust is one created by a settlor to confer July 1997, Essay 2
LOW a substantial benefit to society. The beneficiary may be

indefinite or contain a class of persons described by the
trust. The rule against perpetuities DOES NOT apply to
1 of 49 Exams
charitable trusts.
• A general charitable trust that fails to state a specific purpose
or beneficiary will NOT fail. Instead, the court will select a
purpose or beneficiary consistent with the settlor’s intent.
• When the trust names a specific charitable beneficiary,
the trust will terminate upon that specified charity’s
termination. However, if the settlor had a general charitable
intent, the cy pres doctrine may be used to continue the trust
consistent with that intent.
■■ Illusory Trusts
• When the settlor retains significant control over the trust Feb 2015, Essay 6
LOW property indicating a lack of intent to create a trust (i.e. when

a settlor retains a right of withdrawal or names himself as sole
trustee), the trust will be deemed illusory and invalid.
1 of 49 Exams
■■ Resulting Trusts
• If a trust fails for lack of a beneficiary, a Resulting Trust is Feb 2007, Essay 2
LOW implied by law, and all trust property returns to the settlor or
the settlor’s estate.
1 of 49 Exams
■■ Discretionary Trusts
• A Discretionary Trust occurs when a trustee has absolute Feb 2019, Essay 5
HIGH discretion and power to determine when and how much of Feb 2011, Essay 1
the trust property is distributed to the beneficiaries of the July 2009, Essay 1
trust. The trustee’s exercise of discretion MUST be in good July 1999, Essay 1
5 of 49 Exams
faith. A court will generally not interfere with a trustee’s July 1995, Essay 7
exercise of discretion, unless the trustee is abusing such
power.
• Whether the trustee has abused their discretion depends
on: (1) the terms of the trust instrument; and (2) the other
duties of the trustee (such as the duty to administer the trust
according to its terms, duty to act impartially, and duty of
care).

■■ Support Trusts
• A support trust is a trust that contains a provision directing the Feb 2019, Essay 5
MED trustee to pay the beneficiary as much income and principal as July 2007, Essay 8
is necessary for the beneficiary’s support. Support trusts may July 1995, Essay 7
3 of 49 Exams
be pure (when the trustee has no discretion) or discretionary.
• If a discretionary support trust provision contains an
ascertainable standard, a beneficiary may compel a trustee
to make payments in accordance with that standard. A
common ascertainable standard is one that provides for an
individual’s health, education, support, or maintenance. The
beneficiary may bring a judicial proceeding against the trustee
for abuse of discretion when the trustee fails to make proper
payments/distributions.
• Unless otherwise defined, the definition of support is fact
dependent. It is measured by the lifestyle the beneficiary has
been accustomed to, and includes more than just necessities
and bare essentials. It ALWAYS includes: necessities (i.e.
necessary food, shelter, clothing, and medical care); and
reasonable amounts for child support.
C. How Trust Assets Pass
■■ How Trust Assets Pass

• Trust assets pass according to the terms of the trust. When Feb 2015, Essay 6
LOW a testamentary trust or distribution fails, the trust property

passes: (a) under the residuary clause in a will; OR (b) to
the settlor’s heirs by intestacy (if no applicable residuary
1 of 49 Exams
clause).
D. Cy Pres Doctrine
■■ Cy Pres Doctrine
• Cy pres is an equitable doctrine that applies to charitable July 2011, Essay 3
HIGH bequests and charitable trusts. Courts will apply cy pres July 2009, Essay 1
to modify a charitable trust to be consistent with and “as Feb 2007, Essay 2
near as possible” with the settlor’s or testator’s intent, Feb 2000, Essay 4
6 of 49 Exams
if the purpose of the trust or bequest is frustrated (the July 1997, Essay 2
trust becomes unlawful, impracticable, impossible, or Feb 1996, Essay 7
wasteful). The cy pres doctrine only applies if the testator
had a general charitable intent.

• A settlor has general charitable intent when the settlor

provides a particular charitable purpose, rather than naming a
specific charity. The majority of courts and the Uniform Trust
Code (UTC) will presume a general charitable intent. The
absence of a reverter clause (that property will go to another
beneficiary in the event that property cannot be used for the
charitable purpose) is an indication of a general charitable
intent.
E. Restraints on Alienation & Rights of Creditors
■■ Spendthrift Trusts
• A spendthrift provision in a trust (one preventing the transfer Feb 2019, Essay 5
HIGH of a beneficiary’s interest) is valid only if it restrains both Feb 2006, Essay 1
voluntary AND involuntary transfers. Feb 2003, Essay 6
• A spendthrift interest means that the interest CANNOT Feb 2001, Essay 6
5 of 49 Exams
be sold or assigned by the income beneficiary, nor may any Feb 1996, Essay 7
creditors reach it (but the creditor may attempt to collect
directly from the beneficiary after a payment is made from the
trust).
MEE TIP
• However, there are five exceptions to this rule when a
creditor CAN reach the beneficiary’s interest. They The rules of Spendthrift Trusts
are: (1) a judgment creditor who has provided services for and the Rights of Creditors are
usually tested together on essay
the protection of a beneficiary’s interest in the trust; (2) questions.
a creditor who furnishes necessities (i.e. necessary food,
shelter, clothing, and medical care) – only some jurisdictions
recognize this exception; (3) an order for child support or
alimony; (4) any claim by the state or federal government
(i.e. federal tax liens); or (5) a self-settled trust where the
settlor retains an interest (i.e. a revocable trust).
• Spendthrift trusts DO NOT provide protection for mandatory
distributions of trust property.
• A spendthrift provision DOES NOT prevent a beneficiary
from reaching trust assets if the trustee abused his discretion
in failing to make payments.
■■ Rights of Creditors
• If a beneficiary’s interest is not subject to a spendthrift Feb 2019, Essay 5
HIGH provision, then the court may authorize a creditor to reach Feb 2011, Essay 1
the beneficiary’s interest by attachment of present or future Feb 2007, Essay 1
distributions to the beneficiary. If a beneficiary’s interest Feb 2006, Essay 1
6 of 49 Exams
is subject to a spendthrift provision, a creditor is generally Feb 2003, Essay 6
prohibited from attaching that interest, and may only attempt Feb 2001, Essay 6

to collect directly from the beneficiary after a payment is

made. If the debtor is a remainder beneficiary, the creditor
will need to wait until the trust terminates to receive the trust
property.
• Discretionary Trusts: Whether or not a trust contains a
spendthrift provision, a creditor cannot compel a distribution
to a beneficiary that is subject to the trustee’s discretion, even
if: (a) the discretion is expressed in the form of a standard of
distribution; OR (b) the trustee has abused their discretion.
• Discretionary Trusts & Spousal and Child Support: If a
judgment or order exists against the beneficiary for unpaid
spousal or child support, the court may order a distribution
to satisfy the judgment and direct the trustee to pay the
child, spouse, or former spouse an equitable amount of the
judgment/order.
F. Powers of Invasion
■■ Powers of Invasion
• Invasion of Trust Principal: If a beneficiary will eventually July 1999, Essay 1
LOW receive trust principal, a court may permit invasion

UNLESS the invasion would: (a) be contrary to the settlor’s
intent; OR (b) adversely affect other beneficiaries.
1 of 49 Exams
• Express and Implied Powers of Invasion: A trustee CANNOT
use trust property to pay income beneficiaries when trust
income is insufficient, UNLESS there is an express or implied
(through settlor’s words or conduct) power of invasion. A
court may also permit invasion if it’s in the best interests of
the beneficiaries or for the maintenance and support of the
beneficiaries.
G. Modification of a Trust
■■ Modification of a Trust
• Under the majority view, a trust may only be modified by Feb 2017, Essay 2
MED a settlor: (a) who expressly reserved the power to modify Feb 2013, Essay 8
the trust; OR (b) who has the power to revoke the trust (a
2 of 49 Exams
power of revocation includes the power to amend). Under
the minority view, a settlor is free to amend or revoke a trust
without the express authority to do so (unless the trust states
otherwise). Amendments must be made in writing and signed
by the settlor.

• Under the Uniform Trust Code (UTC), a trust may be

modified in the following instances: (1) by the settlor while
alive, by a later will/codicil, or any other method manifesting
clear and convincing evidence of the settlor’s intent (unless
the trust instrument provides otherwise); (2) with the settlor
and the beneficiaries consent (even if the modification is
inconsistent with the trust purpose); (3) with the beneficiaries
consent and the court determines that the modification is not
inconsistent with the trust purpose; (4) modification will
further the purposes of the trust because of circumstances
not anticipated by the settlor; (5) the cy pres doctrine
applies; (6) the court determines that the value of the trust
property is insufficient to justify the cost of administration,
and provides notice to all beneficiaries; and (7) it is necessary
to conform to the settlor’s intent or tax objectives.
o When determining the settlor’s intent, the court must
consider: (1) terms and words of the trust; (2) the
property involved; (3) the ability of ascertaining
possible trust purposes, terms, and possible
beneficiaries and their interests; (4) the interests or
motives that could have reasonably influenced the
settlor; and (5) the financial situation, dependencies,
and expectations of the parties
■■Equitable Deviation Doctrine & Modification of Administrative

and Dispositive Trust Provisions
• If continuing a trust on its existing terms would be July 2011, Essay 3
LOW impracticable or wasteful, courts may apply the Equitable

Deviation Doctrine to modify the terms of the trust. The
doctrine permits the court to modify the administrative
1 of 49 Exams
provisions or procedures of a trust if modification would
further the trust purpose because of circumstances not
anticipated by the settlor.
• Under the common law, the equitable deviation doctrine
only applied to modification of administrative provisions
of a trust. However, under the Uniform Trust Code
(UTC), dispositive provisions in a trust may be modified
if modification will further the purposes of the trust when
circumstances arise that were not anticipated by the settlor.

■■ Additions Clause in a Trust

• When the settlor anticipates changing trust assets, an additions July 2007, Essay 8
LOW clause should be added to the trust instrument. A trustee

retains the specific power to accept or reject additions to the
trust property from a settlor or any other person.
1 of 49 Exams
H. Termination of a Trust
■■ Termination of a Trust
• Under the Uniform Trust Code (UTC), a trust may be July 2015, Essay 6
HIGH terminated in the following instances: (1) it is revoked or July 2012, Essay 1
expires pursuant to its terms (including the settlor revoking Feb 2003, Essay 6
a revocable trust); (2) the material purpose of the trust has July 1995, Essay 7
4 of 49 Exams
been achieved (a material purpose is a particular concern or
objective of the settlor); (3) the trust has become unlawful,
contrary to public policy, or impossible to achieve; (4) the
settlor and all beneficiaries consent (even if termination is
inconsistent with purpose of the trust); (5) all beneficiaries
consent and the court decides that continuance is not
necessary to achieve any purpose of the trust; (6) termination
will further the purpose of the trust because of circumstances
not anticipated by the settlor; (7) the court applies the cy
pres doctrine to terminate the trust; or (8) the court or trustee
determines that the value of the trust property is insufficient
to justify the cost of administration.
■■ Distribution Upon Termination

• Upon the occurrence of an event terminating or partially July 2012, Essay 1
LOW terminating a trust, the trustee shall proceed expeditiously to

distribute the trust property to those entitled to it. The trustee
may retain a reasonable reserve for the payment of debts,
1 of 49 Exams
expenses, and taxes.
• The beneficiaries may decide how the trust property is
to be distributed if the trust is terminated either by: (a)
consent from the settlor and all beneficiaries; OR (b) by all
beneficiaries, and a determination from the court.
■■ Conditions that Prohibit Marriage or Require Divorce July 2015, Essay 6

July 2012, Essay 1
• A condition on a gift in a will/trust that prohibits a first
MED marriage or requires divorce are void as against public This is a cross-over
policy, and will be treated as though the restriction had not rule with Wills &
Estates. It is listed
2 of 49 Exams
been imposed. However, a restraint on marriage may be in both subjects, as
upheld if: (a) it is a restraint on remarriage (i.e. a condition it has been tested in
both the Wills and
tied to the surviving spouse’s interest); OR (b) the language Trusts contexts.

of the bequest or gift indicates that its intended purpose is to

take care of a person’s daily needs until they are able to obtain
such support through marriage.
I. Powers & Duties of Trustees
■■ Trustee Duty to Administer the Trust

• The trustee must continue to administer the trust until the Feb 2014, Essay 2
HIGH trust terminates, and must hold the trust assets until the July 2012, Essay 1
remaindermen are determined. July 2009, Essay 1
• Under the common law, the trustee owed beneficiaries the Feb 2008, Essay 9
5 of 49 Exams
duty to act with care, skill, and prudence. July 1995, Essay 7
• Under the Uniform Trust Code, a trustee MUST administer
the trust: (1) in good faith; (2) in accordance with the trust
purpose and terms; AND (3) in the interests of the trust
beneficiaries.
• The trustee MUST exercise his powers in good faith and in
accordance with the terms and purposes of the trust and the
interests of the beneficiaries, even if the trust grants the trustee
broad range of discretion (including the use of terms such as
“absolute” or “uncontrolled”).
■■Trustee Duty of Care: Prudent Administration, Take Control

& Protect Trust Property
• Duty of Prudent Administration: A trustee must administer July 2018, Essay 4
LOW the trust as a prudent person would, by considering the

purposes, terms, distributional requirements, and other
circumstances of the trust. In order to satisfy this duty, a
1 of 49 Exams
trustee must exercise reasonable care, skill, and caution.
• Duty to Take Control & Protect Trust Property: A trustee
must also take reasonable steps to take control of AND
protect the trust property. The failure to purchase fire/
casualty insurance for trust property is a breach of this duty,
when insurance is customarily obtained by a prudent person.
■■ Trustee Duty of Loyalty: Self-Dealing

• A trustee must administer the trust solely in the interest of July 2018, Essay 4
HIGH the beneficiaries and CANNOT engage in self-dealing. A July 2015, Essay 6
transaction involving trust property that is entered into by July 2009, Essay 1
the trustee for the trustee’s own benefit or that is affected July 1998, Essay 7
5 of 49 Exams
by a conflict between the trustee’s fiduciary and personal Feb 1996, Essay 5
interests is voidable by a beneficiary affected by the
transaction. Alternatively, a beneficiary can seek a damages
award for the trustee’s self-dealing.

• Five exceptions to this rule exist: (1) if the transaction was

authorized by the terms of the trust; (2) if the transaction was
approved by the court; (3) the beneficiary did not commence
a judicial proceeding within the required time; (4) the
beneficiary consented to the conduct, ratified the transaction,
or released the trustee of liability; OR (5) the transaction
occurred before the person became trustee.
■■ Trustee Duty of Loyalty: Conflicts of Interest

• A transaction will be presumed to be affected by a conflict July 2018, Essay 4
MED of interest if it is entered into by the trustee with: (a) the Feb 2008, Essay 9
trustee’s spouse; (b) the trustee’s descendants, siblings,
2 of 49 Exams
parents, or their spouses; (c) an agent or attorney of the
trustee; OR (d) a corporation or other person or enterprise in
which the trustee has an interest that might affect the trustee’s
best judgment.
• Under the No Further Inquiry Rule, a transaction involving
trust property entered into by the trustee for the trustee’s
own benefit is automatically presumed to be a conflict of
interest, and is voidable without further inquiry into the
fairness of transaction or possible intent/motivation for self-
dealing. It is immaterial whether the trustee acts in good faith
or pays a fair consideration.
• For transactions involving trust property entered into with
persons who have close business or personal ties with the
trustee, this presumption may be rebutted if the trustee shows
that the transaction was not affected by any conflict.
■■ Trustee Duty of Loyalty: Duty to Act Impartially

• If a trust has two or more beneficiaries, the trustee MUST act Feb 2019, Essay 5
MED impartially in investing, managing, and distributing the trust July 2018, Essay 4
property – giving due regard to the beneficiaries’ respective July 1998, Essay 7
3 of 49 Exams
interests.
• Impartiality means that the trustee CANNOT be influenced
by his personal favoritism or animosity toward individual
beneficiaries when administering the trust.
■■ Trustee Duty of Care: Failure to Test the Market

• Failing to test the market for potential buyers before selling July 2015, Essay 6
LOW trust property (i.e. shares of a company) could result in a

breach of the trustee’s duty of care.
1 of 49 Exams

■■ Trustee Duty of Care: Investments & Prudent Investor Rule

• The Prudent Investor Rule requires that a trustee exercise the July 2015, Essay 6
HIGH degree of care, skill, and prudence of a reasonable investor Feb 2010, Essay 8
investing his own property. Feb 2008, Essay 9
o This includes diversifying trust assets, avoiding risky Feb 2004, Essay 7
6 of 49 Exams
investments, and the duty to monitor investments and July 1998, Essay 7
sell and reinvest investments as necessary to keep the July 1996, Essay 5
trust assets productive.
• In assessing whether a trustee has breached this duty, a
court must consider a number of factors, including: (1) the
distribution requirements of the trust; (2) general economic
conditions; (3) the role the investment plays in relationship
to the trust’s overall investment portfolio; and (4) the trust’s
need for liquidity, regularity of income, and preservation or
appreciation of capital.
■■ Delegation of Trustee Duties

• A trustee may delegate duties and powers that a prudent Feb 2004, Essay 7
LOW trustee of comparable skills could properly delegate under

the circumstances. If the trustee delegates a duty, the trustee
MUST exercise reasonable care, skill, and caution in: (1)
1 of 49 Exams
selecting an agent; (2) establishing the scope and terms of
the delegation; AND (3) periodically reviewing the agent’s
actions in order to monitor the agent’s performance and
compliance with the terms of the delegation. The trustee is
NOT liable for actions of an agent if the trustee meets the
above requirements.
■■ Trustee Acting in Accordance with the Settlor’s Wishes

• If a trust is revocable, a trustee owes duties only to the settlor Feb 2017, Essay 2
MED (during the settlor’s lifetime). Therefore, a trustee is NOT Feb 2010, Essay 8
liable for breach of the trust if the trustee acted in accordance
2 of 49 Exams
with the settlor’s wishes (even if to the exclusion of the other
beneficiaries).
• If a trust is irrevocable, the trustee owes duties to settlor and
the beneficiaries, and cannot be relieved from liability for
acting in accordance with the settlor’s wishes.

■■ Principal and Income Allocations

• Trust receipts and disbursements are allocated according to July 2018, Essay 4
HIGH State law either to income or principal. Feb 2014, Essay 2

• The following items MUST be allocated to income: (1) Feb 2001, Essay 6
receipt of rental payments from real or personal property; July 1998, Essay 7
4 of 49 Exams
(2) money received from an entity (i.e. cash dividends,
interest on investments); and (3) ordinary expenses and
repairs.
• The following items MUST be allocated to principal: (1)
proceeds from the sale of a principal asset; (2) all other
property received (other than money received from an entity);
and (3) extraordinary expenses and repairs – expenses/
repairs due to an unusual or unforeseen occurrence that is
beyond the usual, customary, or regular kind.
■■ Damages for Wrongful Invasion of Trust Assets

• A trustee who wrongfully invades trust assets is liable to July 1999, Essay 1
LOW the beneficiaries affected for the greater of: (a) the amount
required to restore the value of the trust property and
distributions (to what it would have been if the breach did
1 of 49 Exams
not occur); OR (b) any profit made by the trustee from the
breach.
J. Future Interests
■■ Remainder Beneficiary of a Trust

• Remainder beneficiaries (also known as remaindermen) are July 2018, Essay 4
HIGH NOT entitled to receive trust property UNTIL the termination Feb 2014, Essay 2
of the trust. July 2012, Essay 1
Feb 2003, Essay 6
4 of 49 Exams
■■ Future Interests: Representation of Remaindermen

• A minor, incapacitated, or unborn individual MAY be July 2012, Essay 1
LOW represented by and bound by a person with a substantially

identical interest concerning a particular issue, UNLESS: (a)
the person is already represented; OR (b) a conflict of
1 of 49 Exams
interest exists between the representative and the person.

■■ Future Interests: Substituted Takers

• A substitute gift is created in the deceased beneficiary’s July 2008, Essay 6
MED surviving descendants if: (1) the beneficiary of a future July 2007, Essay 8
interest does not survive the distribution date; AND (2) a
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state’s anti-lapse law applies to trusts. However, most states’
anti-lapse statutes DO NOT apply to trusts.
• Under the Uniform Probate Code (UPC), if a beneficiary
of a future interest DOES NOT survive the distribution
date, the following applies: (a) if the gift is not a class
gift, a substitute gift is created in the deceased beneficiary’s
surviving descendants who take the property the beneficiary
would have received; OR (b) if the gift is a single generation
class gift (i.e. “children”), a substitute gift is created in the
surviving descendants of any deceased beneficiary. Each
surviving beneficiary takes the property he would have been
entitled to had all the beneficiaries survived the distribution
date. Each deceased beneficiary’s surviving descendant
takes the property the deceased beneficiary would have been
entitled to.
■■ Vested Remainder Interest

• A vested remainder is an interest where there are no July 2018, Essay 4
MED contingencies or conditions on survivorship. Vested Feb 2011, Essay 1

remainders are devisable and will pass to that person’s heirs Feb 2010, Essay 8
3 of 49 Exams
if they die before the interest becomes possessory.
• Under the common law, vested remainders will pass to a
deceased remainder person’s heirs, UNLESS there is a
survival condition in the trust. If the remainder person has no
heirs, the interest passes to the remainder person’s estate.
■■ Vested Interests: Condition on Survivorship
• Under the common law, a condition of survivorship on future Feb 2011, Essay 1
MED interests in a trust is NOT implied. However, under the July 2004, Essay 1
Uniform Probate Code (UPC), such condition is implied. July 2002, Essay 7
3 of 49 Exams

■■ Acceleration of Future Interests

• A person’s future remainder interest may be accelerated Feb 2014, Essay 2
MED (allowing the person to take possession immediately) Feb 2007, Essay 2
if the present holder: (a) loses his legal right to the July 2001, Essay 2
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property; OR (b) disclaims his present interest in the
property. If an income beneficiary disclaims his interest, the
remainder beneficiaries are immediately entitled to the trust
principal UNLESS: (a) distribution would harm one of the
beneficiaries or potential beneficiaries (i.e. causing a class to
close earlier); OR (b) the trust terms limit acceleration of a
remainder interest.
K. Powers of Appointment
■■ Powers of Appointment
• When a testator/settlor (the donor) gives another person July 2009, Essay 9
HIGH the power to decide where and to whom the testator’s July 2007, Essay 8
property will go, that person (the donee) has a power of Feb 2002, Essay 4
appointment. A general power of appointment is granted Feb 1996, Essay 7
4 of 49 Exams
when the testator DOES NOT leave any conditions or
restrictions as to the appointment of the property. Thus, the
donee is permitted to appoint the power to anyone, including
himself. A testamentary power of appointment can only
be exercised by the donee’s will and according to the donor’s
conditions.
• The donee’s power is effectively exercised in an instrument
only if: (1) the instrument is valid under state law; (2) the
terms indicate the holder’s intent to exercise the power and
are consistent with the conditions (if any) imposed by the
testator; AND (3) the appointment is permissible.
• An appointment is permissible if it’s to a person or group
authorized by the donor. In most states, a donee’s power
is NOT exercised in a general residuary clause in a will
UNLESS the donee’s intent to exercise the power is
referenced. Intent to exercise the power is presumed in a
blanket exercise clause (i.e. “All the residue and remainder of
my estate, including any property over which I have a power
of appointment, I devise to…”).

• Under the Uniform Probate Code (UPC), absent a requirement

that a power be expressly or specifically referenced, a general
residuary clause expresses an intention to exercise a power
of appointment held by the testator only if: (a) the testator’s
will manifests an intention to include the property subject
to the power; OR (b) the power is a general power and the
creating instrument does not contain a gift if the power is not
exercised.
• In some states and under the UPC, if the donor required the
power be exercised by an express or specific reference, a
blanket exercise clause is not sufficient to show intent to
exercise the power, and additional evidence will be needed to
prove the donee’s intent.
■■ Powers of Appointment: Special Power of Appointment

• A special power of appointment is one in which the donee Feb 2017, Essay 2
MED (the holder of the power) may only appoint property to a July 2005, Essay 7
limited class of persons authorized by the donor. The donor
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MUST indicate certain individuals or definite groups. The
donee may make an appointment in any form, including one
in trust. Appointments made to those NOT authorized by
the donor are ineffective. The holder of a special power of
appointment CANNOT appoint such property to himself, his
estate, his creditors, or his estate’s creditors.
■■ Powers of Appointment: Ineffective Appointments

• Appointments made to those NOT authorized by the donor Feb 2017, Essay 2
MED are ineffective. If more than one appointment is made at a July 2005, Essay 7
time, an appointment that is ineffective will not affect an Feb 1996, Essay 7
3 of 49 Exams
appointment that is valid. If the donee of a general power of
appointment makes an ineffective appointment, the property
passes to the taker-in-default designated by the donor of the
power. If the donor did not provide for a taker-in-default, the
property passes to the donee or the donee’s estate.
L. Rule Against Perpetuities
■■ Common Law Rule Against Perpetuities & Modern Modifications

• For an interest to be valid under the common law Rule July 2017, Essay 4
HIGH Against Perpetuities (RAP), it must vest within a life in being Feb 2013, Essay 8
at the time of the grant plus 21 years. This rule invalidates Feb 2004, Essay 7
any interest that will not vest during the time period AND July 2000, Essay 7
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those that hypothetically may not vest within the time Feb 1996, Essay 7
period. A class gift becomes vested under the RAP when (1)
the class closes; AND (2) all conditions for every member of
the class are satisfied.

• Some states have modified the common law rule, and provide
that a non-vested property interest is invalid ONLY IF it
actually does not vest within 21 years after the death of a
life in being at the time the interest was created. Rather than
invalidate interests on the possibility that they will not vest, this
approach waits to see if the interest will actually not vest.
• In addition, certain states have statutorily modified the
common law rule such that the courts will reduce any age
contingencies that violate the rule to 21 years.
M. Construction Problems
■■ Class Gifts
• A class gift is a gift to a group of persons described July 2017, Essay 4
HIGH collectively (usually in terms of their familial relationship). Feb 2014, Essay 2
• Under the common law, the words of a testator/settlor were July 2012, Essay 1
given their legal meaning. However, modern courts are Feb 2011, Essay 1
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more likely to consider the testator/settlor’s intent. The Feb 2010, Essay 8
terms “children” and “issue” are interpreted in accordance July 2008, Essay 6
with intestate succession rules. An adopted child inherits July 2004, Essay 1
the same as a natural child when the adopted child is not the July 2000, Essay 7
relative of the adopting parent. This applies to inheritance Feb 1998, Essay 3
rights not only of the adopting parent, but the adopting
parent’s family. Therefore, if a class gift is made to the issue rule with Wills &
or children of an adopting parent, the adoptive child will share Estates. It is listed
in that gift as would a natural child of that parent. in both subjects, as
it has been tested in
• Class gifts generally close at the death of the testator/ both the Wills and
settlor. Under the Rule of Convenience the class is closed Trusts contexts.
when any member of the class is entitled to possession of the
gift.
• When a gift to a class is involved, whether the gift to a
predeceased member of the class will go into the residuary
estate or be divided amongst the other class members
depends on whether a group of persons is named (i.e. “my
children”) or whether individual members of the class are
specifically named (i.e. “Tom, Mary, and Joe”). When the
class is specifically named, the gift will lapse and fall into the
residuary estate unless an anti-lapse statute applies. When
the class members are named as a group, the predeceased
member’s share will be divided amongst the other members,
unless there is a provision in the will to the contrary or an
anti-lapse statute applies.
• A class gift may be based on a contingency. If so,
remaindermen are entitled only to the gift if the specified
conditions are satisfied.

15 WILLS & ESTATES
UPC = Uniform Probate Code
Issue = a person’s lineal descendants
MEE TIP
A. Intestate Succession
Pay attention to the essay
question to see if the applicable
■■ Intestate Succession intestacy statute is provided, as
some exams have included the
• Any property not passing by a valid will or by operation specific intestacy rules to apply.
HIGH of law will be governed by a state’s applicable intestacy

statute. July 2012, Essay 9
• If the decedent leaves only a surviving spouse and no issue, Feb 2012, Essay 5
9 of 49 Exams
in most states the surviving spouse will receive the entire July 2009, Essay 9
estate. However, some UPC states provide that a certain Feb 2008, Essay 1
portion of the estate will be given to the decedent’s parents Feb 2006, Essay 7
and their issue. July 2004, Essay 4
• If the decedent leaves a surviving spouse and issue July 2001, Essay 4
(i.e. children, grandchildren), then in most states the July 2000, Essay 2
surviving spouse will receive a certain portion of the July 1995, Essay 1
estate (either a certain percentage or a certain amount
plus a percentage) and the issue will take a certain
percentage. Under the Uniform Probate Code (UPC), the
surviving spouse will receive the entire estate if all issue are
issue of the surviving spouse.
• If the decedent does not leave a surviving spouse, the estate
passes to the decedent’s issue.
• If the decedent does not leave a spouse or issue, the estate
passes to the decedent’s surviving parents equally or to
one parent (if only one survives). If there are no surviving
parents, then the estate passes to the issue of the decedent’s
parents.
• In the majority of states, the distribution of intestate assets
will be performed using the Per Capita at Each Generation
approach.
B. Will Execution Requirements
■■ Will Execution Formalities

• A will is valid if the specific formalities provided by state law July 2017, Essay 4
HIGH are followed. Feb 2011, Essay 9

• Most states require a will to be in a writing signed by the Feb 2004, Essay 1
testator and witnessed by at least two individuals. Under July 2010, Essay 3
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the Uniform Probate Code (UPC), a will must be: (1) Feb 2003, Essay 1
in writing; (2) signed by the testator (or by some other Feb 2000, Essay 4
individual in the testator’s conscious presence and by the July 1998, Essay 1
testator’s direction); AND (3) either (a) signed by at least
two individuals within a reasonable time after witnessing the
signing of the will or (b) notarized.

15 WILLS & ESTATES
• A valid will requires intent by the testator to create the

will. Thus, if it’s proven that the testator lacked testamentary
intent, a will will be deemed invalid. Extrinsic evidence is
admissible to prove intent.
• Under the majority view, a will is signed in the testator’s
presence if it’s signed within the testator’s line of
sight. Under the minority view and the UPC, a will is signed
in the testator’s presence if it’s signed within the range of the
testator’s senses.
■■Will Execution Formalities: Strict Compliance & Substantial

Compliance Doctrine
• Under the common law, a will is invalid if it does not meet Feb 2004, Essay 1
MED all the requirements of the state’s law. Some states will find Feb 2003, Essay 1
a will valid if the decedent substantially complied with the
2 of 49 Exams
state’s requirements.
• Under the Uniform Probate Code’s harmless error rule, an
improperly executed will still be valid if the party seeking
to have it validated proves (1) by clear and convincing
evidence, (2) that the decedent intended the writing to be his
will. Generally, the greater the departure from the necessary
execution formalities, the harder it is to prove the testator’s
intent.
■■ Doctrine of Integration
• Under the Doctrine of Integration, a document will be July 2010, Essay 3
LOW integrated into a will if the testator: (1) intended it to be part

of the will; AND (2) the document was physically present at
the will’s execution. Thus, all pages of a will that are together
1 of 49 Exams
when the last page is signed and witnessed are deemed to
have been validly executed. Integration may be proven by
extrinsic evidence or witness testimony.
■■ Interested Witnesses
• Under the common law, the signing of the will must be July 2017, Essay 4
HIGH witnessed by two disinterested witnesses (individuals who are July 2002, Essay 2
not receiving a benefit under the will). Feb 2001, Essay 1
• However, most states provide for two exceptions in which the Feb 2000, Essay 4
4 of 49 Exams
will remains valid despite being witnessed by an interested
witness: (a) if the interested witness is an heir (any gift to
that witness is reduced to their intestate share); OR (b) if
another disinterested witness was present so that there were
still a total two disinterested witnesses.

15 WILLS & ESTATES
■■ Codicils
• A codicil is an instrument made after a will is executed that July 2017, Essay 4
HIGH modifies, amends, or revokes a will. A codicil MUST satisfy Feb 2012, Essay 5
the same formalities as a will to be valid. Execution of a July 2010, Essay 3
codicil republishes the will, meaning courts will consider Feb 2003, Essay 1
4 of 49 Exams
the original will to have been executed on the same date
as the codicil. A validly executed codicil will cure any
interested witness issues with the original will (as long as the
codicil is witnessed by the requisite number of disinterested
witnesses). Most courts hold that a codicil CANNOT
republish an invalid will.
■■ Holographic Wills & Codicils

• A holographic will (or a written alteration to a will) is a July 2012, Essay 9
HIGH handwritten will that is NOT witnessed. Not all states Feb 2011, Essay 9
recognize holographic wills. In the states that do, some July 2003, Essay 2
require that the writing also be signed by the testator. Feb 2000, Essay 4
5 of 49 Exams
• In the states that recognize holographic wills, a valid July 2001, Essay 4
holographic codicil revokes any earlier valid will to the
extent it conflicts with the codicil.
C. Incorporation by Reference & Acts of Independent Significance
■■ Incorporation by Reference
• A bequest through an unattested document is valid if it meets July 2017, Essay 4
HIGH the requirements to be incorporated into a will by reference. Feb 2012, Essay 5
• In most states, a document or writing may be incorporated Feb 2011, Essay 9
into a will by reference if: (1) it was in existence at the time July 2006, Essay 3
9 of 49 Exams
the will was executed; (2) it is sufficiently described in the Feb 2006, Essay 1
will; AND (3) the testator intended to incorporate it into the Feb 2003, Essay 1
will. July 2002, Essay 7
• The Uniform Probate Code (UPC) permits a document or July 2001, Essay 4
writing bequeathing tangible personal property (other than July 1996, Essay 3
money) to be incorporated into the will if it: (1) was signed
by the testator; AND (2) describes with reasonable certainty
the items and the devisees. Under the UPC, the document
is NOT required to be in existence at the time the will is
executed, and may be prepared after execution.

15 WILLS & ESTATES
■■ Acts of Independent Significance

• A court may use an act of independent significance to fill in July 2006, Essay 3
LOW any gaps of a will. Acts of independent significance are those

with significance outside of the will-making process.
1 of 49 Exams
D. Revocation of a Will
■■ Revocation by Physical Act

• A will is revoked by physical act if: (1) the testator intended Feb 2015, Essay 6
HIGH to revoke the will; AND (2) the will is burned, torn, Feb 2005, Essay 5
destroyed, or cancelled by the testator (or someone at his July 2003, Essay 2
direction and in his presence). July 2001, Essay 4
7 of 49 Exams
• Under the common law, words of cancellation are valid July 2000, Essay 2
only if they come in physical contact with words of the will Feb 2000, Essay 4
(i.e. written over). Under the Uniform Probate Code, words July 1998, Essay 1
of cancellation are valid even if they did not physically
contact the words of the will.
■■ Revocation by Subsequent Will or Codicil

• A testator may revoke a will by executing a subsequent valid July 2003, Essay 2
MED will or codicil. Execution of a new will revokes a previous July 2001, Essay 4
will only to the extent that the previous will conflicts with July 1996, Essay 3
3 of 49 Exams
the new will UNLESS the new will expressly revokes the
previous will in its entirety.
■■ Dependent Relative Revocation Doctrine

• The Dependent Relevant Revocation Doctrine (DRR) cancels July 2010, Essay 3
HIGH a previous revocation that was made under a mistaken Feb 2005, Essay 5
belief of law or fact by the testator. The doctrine applies July 2001, Essay 4
when the testator would not have revoked his original will but July 2000, Essay 2
4 of 49 Exams
for the mistaken belief that another will he prepared would be
valid. When determining whether to apply DRR, courts will
consider the testator’s intent by comparing the distributions
with and without applying DRR, and decide which is closer to
the testator’s intent.

15 WILLS & ESTATES
E. Revival
■■ Revival of a Will
• Under the common law, an earlier will was automatically Feb 2005, Essay 5
MED revived if a subsequent will was revoked. July 2000, Essay 2

• Under the modern view, most states permit revival of revoked
2 of 49 Exams
wills only under certain circumstances: (a) a will revoked by
physical act will be revived if a testator shows intent for its
revival; OR (b) a will revoked by subsequent instrument can
be revived if the testator republishes the will by a subsequent
will or codicil that complies with the will execution
formalities.
• Under the Uniform Probate Code, if a will was only partially
revoked by a subsequent instrument, the revoked provisions
will automatically be revived UNLESS the testator did not
intend their revival.
F. Contractual Wills
■■ Contractual Wills
• In most states, contracts to execute mutual wills are July 2006, Essay 3
MED enforceable. To be enforceable, the agreement MUST Feb 2000, Essay 4

expressly state that the parties intend their wills to be a July 1996, Essay 3
3 of 49 Exams
binding contract between them. There must be a specific
reference to the contract upon which the joint wills are based
and there must be specific, express intent that the parties
desire the contract. If a party breaches a valid agreement
to execute mutual wills, a court will probate the new will
and then impose a constructive trust in favor of the original
intended beneficiaries under the contractual will.
• The execution of a joint will or mutual wills DOES NOT
create a presumption of a contract not to revoke a will. The
Uniform Probate Code does not address revocation of
contractual wills, but some states recognize revocation if there
is sufficient notice before one of the parties dies.

15 WILLS & ESTATES
G. Distribution of Property
■■ Will Takes Effect at the Time of Death

• The terms of a will determine how the testator’s assets are July 2017, Essay 4
MED distributed. A will takes effect at the time of testator’s July 2006, Essay 3
death, and the estate is comprised of the property owned by
2 of 49 Exams
the testator at the time of death. For distribution purposes,
a will is treated as if it was executed immediately before the
testator’s death. A beneficiary listed in a person’s will DOES
NOT have any interest in the estate property prior to that
person’s death.
■■ Per Capita at Each Generation Distribution

• When assets are distributed by Per Capita at Each Generation, Feb 2006, Essay 7
LOW the estate is divided into as many equal shares as (1) surviving
descendants in the generation nearest to the decedent, and
(2) deceased descendants in that same generation who left
1 of 49 Exams
surviving descendants (if any). Each surviving descendant in
the nearest generation is allocated one share. The remaining
shares, if any, are combined, and then divided in the same
manner among the surviving descendants of the deceased
descendants. This method provides equal shares to those in
the same generation.
■■ Modern Per Stirpes (Per Capita by Representation) Distribution

• Under Modern Per Stirpes (also known as per capita by July 1995, Essay 1
LOW representation), the estate is divided into as many equal

shares as there are (1) surviving descendants in the generation
nearest to the decedent, and (2) deceased descendants in
1 of 49 Exams
that same generation who left surviving descendants (if
any). Each surviving descendant in the nearest generation is
allocated one share. The remaining shares, if any, drop down
and are divided in the same manner among the then living
issue of the deceased descendants.
■■ Per Stirpes Distribution

• Per stirpes means that each branch of the family is to receive Feb 2006, Essay 7
MED an equal share of an estate. Under a per stirpes distribution, July 1995, Essay 1
the assets should be divided at the first generation of which
2 of 49 Exams
there are living takers. Each living and non-living person in
that generation is entitled to one share. Those shares going to
non-living persons drop down directly to their issue.

15 WILLS & ESTATES
H. Construction Problems
■■ Generically Described Property

• Generically described property gifted in a will applies to Feb 2009, Essay 3
LOW property owned at the time of the decedent’s death matching

the description in the will (i.e. a gift of “my boat”). The gift
applies to whatever item is owned at the time of the testator’s
1 of 49 Exams
death, regardless of the specific item that was owned at the
time of execution of the will (i.e. a different model boat).
■■ Advancements/Satisfaction
• At common law, gifts to heirs during a testator’s lifetime were Feb 2007, Essay 5
HIGH considered advancements on the heir’s intestate share of the Feb 2006, Essay 7
estate, and would be deducted from the heir’s share of the July 2004, Essay 4
estate. July 2000, Essay 2
5 of 49 Exams
• Under the modern view and Uniform Probate Code, gifts July 1999, Essay 6
to heirs during a testator’s lifetime are NOT deemed
advancements UNLESS: (a) the will provides for deduction
of the gift; OR (b) it was indicated in writing that the
property was in satisfaction of a devise or that its value will
be deducted from the value of the devise. Some states DO
NOT require a writing, and any evidence of the testator’s
intent may be considered.
■■ Simultaneous Death
• The Revised Uniform Simultaneous Death Act (RUSDA) July 2004, Essay 4
MED provides that if there is no proof by clear and convincing Feb 1997, Essay 1
evidence that one person survived the other by 120 hours
2 of 49 Exams
(5 days), then the property is distributed as if that person
predeceased the other person. Thus, it is presumed that
each person outlived the other when distributing their
estate. If RUSDA applies and two deceased people owned
property as joint tenants, RUSDA creates a fiction that the
rights of survivorship are severed and the property passes as if
the two people held the property as tenants in common.
■■ Residue of a Residue Approach

• At common law, there was no residue of a residue rule. Any Feb 2008, Essay 1
MED residuary shares of a decedent’s estate that were invalid, Feb 1997, Essay 1
passed to the testator’s heirs via intestate distribution. Under
2 of 49 Exams
the modern view, if the residue is devised to two or more
persons, any residuary beneficiary’s share that fails will pass
to the other residuary beneficiaries. This rule only applies if
the anti-lapse statute does not produce a substitute taker for a
beneficiary who fails to survive the testator.

15 WILLS & ESTATES
■■ Conditions that Prohibit Marriage or Require Divorce

• A condition on a gift in a will/trust that prohibits a first July 2015, Essay 6
MED marriage or requires divorce are void as against public July 2012, Essay 1
policy, and will be treated as though the restriction had not
2 of 49 Exams
been imposed. However, a restraint on marriage may be rule with Trusts &
upheld if: (a) it is a restraint on remarriage (i.e. a condition Future Interests. It is
tied to the surviving spouse’s interest); OR (b) the language listed in both subjects,
as it has been tested
of the devise or bequest indicates that its intended purpose in both the Wills and
is to take care of a person’s daily needs until they are able to Trusts contexts.
obtain such support through marriage.
■■Wills Provisions Governing when the Testator Dies With

or Without Issue
• When a testator/grantor includes a provision to govern his July 2001, Essay 2
LOW property in the event he dies without issue, but fails to include
a provision regarding his death in the event he dies with issue,
some courts infer a gift to issue. However, other courts hold
1 of 49 Exams
that the gift fails and passes to the testator/grantor’s estate.
■■ Lapsed Gifts & Anti-Lapse Statutes

• Under the common law rule of lapse, all gifts in a will were Feb 2011, Essay 9
HIGH conditioned on the beneficiary surviving the testator. Any July 2005, Essay 1
gifts to beneficiaries who did not survive the testator failed July 2000, Essay 2
and passed to the residuary estate or under intestacy. Feb 1999, Essay 3
5 of 49 Exams
• However, a gift to a deceased beneficiary will NOT lapse if Feb 1997, Essay 1
an anti-lapse statute applies. The anti-lapse statute provides
that, where a beneficiary under a will predeceases the
testator, the gift will vest in the issue of that predeceased
beneficiary if: (1) the predeceased beneficiary is a specified
descendant of the testator (specified by statute); AND (2) the
beneficiary leaves issue who survive the testator. Under the
Uniform Probate Code, the anti-lapse rule applies to gifts to
issue (i.e. children, grandchildren), stepchildren, grandparents,
and grandparent’s issue (i.e. siblings).
■■ Ademption
• Under the common law identity theory, a specific gift is Feb 2012, Essay 5
HIGH adeemed by extinction if it cannot be identified at the time Feb 2009, Essay 3
of the testator’s death or the testator does not own it at the Feb 2005, Essay 5
time of death. This can occur when the testator makes a Feb 2003, Essay 1
6 of 49 Exams
specific gift, but the property is later destroyed or sold before Feb 2002, Essay 4
their death. The testator’s intent is not relevant. In most July 1995, Essay 1
jurisdictions today, a specific gift will adeem only if the
testator intended the gift to fail.

15 WILLS & ESTATES
• If the testator DID NOT intend for a specific gift to fail, the
beneficiary is entitled to: (a) any real property or tangible
personal property (owned by the testator at death) which the
testator acquired as a replacement for the specific gift; OR
(b) a monetary devise equal to the value of the specific
gift. Additionally, if the specific gift was destroyed, the
beneficiary is entitled to any unpaid insurance recovery or
other recovery for injury to the property.
■■ Stock Splits and Dividends

• A person who was gifted securities (shares of stock) in a will Feb 2012, Essay 5
MED is entitled to additional shares owned by the testator that Feb 2009, Essay 3
were acquired as the result of stock splits or stock dividends. Feb 2007, Essay 5
3 of 49 Exams
■■ Exoneration
• Under the common law, a specific devise of real property Feb 2002, Essay 4
LOW DID NOT pass subject to any mortgage, and the mortgage
was paid from the estate. Under the modern view, a specific
devisee of real property assumes the mortgage (unless
1 of 49 Exams
explicitly stated otherwise), regardless of a general directive
in the will to pay debts.
■■ Abatement
• If there are more creditor’s claims against an estate than Feb 2011, Essay 9
HIGH there are assets to cover all of the gifts made under the will, Feb 2007, Essay 5
the gifts under the will abate (be reduced). Abatement is Feb 2001, Essay 1
not giving effect to bequests in the will so that creditors’ Feb 1999, Essay 3
4 of 49 Exams
claims against the estate can be satisfied. Creditors of the
estate always have priority to assets of the estate over
beneficiaries. Absent provisions in the will, the order in
which a testator’s property abates is as follows: (1) property
passing by intestacy; (2) residuary gifts; (3) general
gifts; (4) specific gifts. Each category must be fully abated
before moving onto the next category. Abatement within each
category is in proportion to the amounts of property each of
the beneficiaries would have received.

15 WILLS & ESTATES
■■ Slayer Statutes
• An individual who feloniously and intentionally kills Feb 2016, Essay 5
HIGH the decedent forfeits all benefits and entitlements to the Feb 2012, Essay 5
decedent’s estate. If the decedent dies intestate, the estate Feb 2006, Essay 7
passes as if the killer disclaimed her intestate share. A Feb 1997, Essay 1
4 of 49 Exams
conviction (after all appeals are exhausted) is conclusive of a
felonious and intentional killing. Otherwise, it may be based
on a preponderance of the evidence proved during a probate
or related court proceeding.
• Modern precedent holds that a state’s slayer statute DOES
NOT apply to a person acting as an agent under a durable
health-care directive when withholding treatment to the
decedent, as withholding treatment is NOT considered to
be the cause of death. However, this issue is unresolved,
and there is still an argument that a slayer statute may bar
recovery from a decedent’s estate in such instance.
■■ Disclaimers
• A disclaimer is when a person renounces their legal right to Feb 2014, Essay 2
HIGH inheritance. An effective disclaimer must: (1) be declared in Feb 2010, Essay 8
writing; (2) describe the interest or power disclaimed; (3) Feb 2009, Essay 3
be signed by the person making the disclaimer; AND (4) be Feb 2007, Essay 5
6 of 49 Exams
delivered or filed. July 2000, Essay 2
• Under common law, a disclaimer must be made within a Feb 1999, Essay 3
reasonable time. Some states require a disclaimer to be made
within 9 months of (a) the death of the decedent, or (b) the
vesting of a future interest. Under the Uniform Probate Code,
and a disclaimer may be made at any time, so long as the
disclaimer is not barred (a person is barred from disclaiming
an interest if he accepts or transfers the interest).
• If an interest is disclaimed, it either: (a) passes according to
any applicable terms of the will/trust; OR (b) as if the person
had predeceased the testator. If the interest passes as if the
person predeceased the testator, the gift will lapse unless an
anti-lapse statute is applicable.
■■ Divorce Revokes Testamentary Provisions to a Former Spouse

• In all states, a final divorce decree revokes any disposition or July 2013, Essay 9
HIGH appointment of property made to the former spouse in a prior Feb 2001, Essay 1
made will. In some states, a bequest is revoked if divorce Feb 1996, Essay 2
proceedings are pending. All provisions that are revoked are July 1995, Essay 1
4 of 49 Exams
treated as if the former spouse had predeceased the testator.

15 WILLS & ESTATES
• Generally, any bequests or fiduciary appointments (i.e. power

of appointment, fiduciary nomination) in favor of the former
spouse’s relatives remain intact. However, under the Uniform
Probate Code (UPC) approach, such provisions are deemed to
be revoked upon divorce.
Prenuptial Agreement Does Not Apply to Voluntary Gifts or

■■
Bequests
• A prenuptial agreement between spouses waiving rights July 2013, Essay 9
LOW to each other’s assets upon divorce DOES NOT apply to

voluntary gifts or bequests.
1 of 49 Exams
I. Types of Gifts
■■ Specific, General, and Demonstrative Gifts

• A specific gift is one that is specifically identified (i.e. real Feb 1999, Essay 3
LOW property or personal property).

• A general gift is nonspecific and can be satisfied from any
of the funds remaining in a testator’s estate. If it’s unclear
1 of 49 Exams
whether the gift is general or specific, the court must consider
the intent of the testator.
• A demonstrative gift is a hybrid and occurs when the testator
makes a general gift, but also identifies a specific source
that the gift should come from. Money from a specified bank
account is an example of a demonstrative gift.
• A gift of stock shares may be general or specific, depending
on the language of the will and the intent of the testator. A
gift of stock shares is a specific gift if the testator owns it
at the time of execution or if it is stock in a closely held
corporation.
J. Class Gifts
■■ Class Gifts July 2017, Essay 4

• A class gift is a gift to a group of persons described Feb 2014, Essay 2
collectively (usually in terms of their familial relationship). July 2012, Essay 1
HIGH
• Under the common law, the words of a testator/settlor were Feb 2011, Essay 1
given their legal meaning. However, modern courts are Feb 2010, Essay 8
9 of 49 Exams
more likely to consider the testator/settlor’s intent. The July 2008, Essay 6
terms “children” and “issue” are interpreted in accordance July 2004, Essay 1
with intestate succession rules. An adopted child inherits July 2000, Essay 7
the same as a natural child when the adopted child is not the Feb 1998, Essay 3

15 WILLS & ESTATES
relative of the adopting parent. This applies to inheritance

rights not only of the adopting parent, but the adopting rule with Wills &
parent’s family. Therefore, if a class gift is made to the issue Estates. It is listed
or children of an adopting parent, the adoptive child will share in both subjects, as
it has been tested in
in that gift as would a natural child of that parent. both the Wills and
• Class gifts generally close at the death of the testator/ Trusts contexts.
settlor. Under the Rule of Convenience the class is closed
when any member of the class is entitled to possession of the
gift.
• When a gift to a class is involved, whether or not the gift to
a predeceased member of the class will go into the residuary
estate or be divided amongst the other class members
depends on whether a group of persons is named (i.e. “my
children”) or whether individual members of the class are
specifically named (i.e. “Tom, Mary, and Joe”). When the
class is specifically named, the gift will lapse and fall into the
residuary estate unless an anti-lapse statute applies. When
the class members are named as a group, the predeceased
member’s share will be divided amongst the other members,
unless there is a provision in the will to the contrary or an
anti-lapse statute applies.
• A class gift may be based on a contingency. If so,
remaindermen are entitled only to the gift if the specified
conditions are satisfied.
K. Gifts to Children
■■ Inheritance Rights of Children & Disinheritance

• Generally, a child has NO rights to his or her parent’s estate Feb 1997, Essay 7
MED if the parent chooses to leave him or her out of the will. The Feb 1996, Essay 2
only time a child will have rights when omitted from a will, is
2 of 49 Exams
if the child is a pretermitted child (which is a child born after
the will was made).
• A child that is intentionally omitted from a will is NOT
entitled to a share of the decedent’s estate. However, if a
portion of the will fails, then a child will be entitled to his
intestate share UNLESS the will intentionally disinherits
the child. In most states, a general disinheritance clause
(one disinheriting anyone not mentioned in the will) is NOT
sufficient to show that a child was intentionally omitted.

15 WILLS & ESTATES
■■ Legal Definition of Children

• At common law, only biological, full blooded, children born July 2013, Essay 9
HIGH into wedlock were entitled to inherit. July 2012, Essay 9

• Under the modern view, gifts to children include any July 2010, Essay 3
child that is included in the legal definition of “children”, July 2004, Essay 4
5 of 49 Exams
including biological children (marital and non-marital), July 1999, Essay 6
half-bloods, and adopted children. An adopted child inherits
the same as a natural child when the adopted child is not the
relative of the adopting parent. This applies to inheritance
rights not only of the adopting parent, but the adopting
parent’s family.
o However, adoption normally severs the parent-child
relationship between the child and his biological
parents. Thus, adopted-out children are generally
NOT included in the estate of their biological parents
(unless the biological parent’s will expressly states
otherwise).
• Non-marital children inheriting from a father must first
establish paternity. If a child is in the process of being
adopted by a married couple when one of the spouses die, the
child is treated as adopted if the child is subsequently adopted
by the surviving spouse.
■■ Inheritance by Equitable Adoption

• In some states, a child may be informally adopted through July 1999, Essay 6
MED a person’s words or conduct. When a person takes in a child Feb 1998, Essay 3
and assumes parental responsibilities (some states also
2 of 49 Exams
require the decedent to have promised or agreed to adopt the
child), equity holds the person as having formally adopted the
child. In such a situation, the child is entitled to an intestate
share of the decedent’s estate.
L. Family Protection
MEE TIP
■■ Spouse’s Elective Share
Usually, the bar examiners will
• Many states have enacted statutes that give a surviving provide you with a statute to
MED spouse the right to take a statutory share of the deceased apply for any question that
spouse’s estate (instead of taking under that deceased spouse’s involves a spousal right of
election. For example, on the
2 of 49 Exams
will). The amount of the elective share varies by state, and Feb. 2017 MEE (Essay 2), the
is typically one-third of the net probate estate (which is the question stated “A statute in
gross-probate estate less creditor claims). The elective share this jurisdiction provides that a
decedent’s surviving spouse is
is in addition to any statutory family exemptions (family
entitled to a ‘one-third elective
residence, exempt personal property, and a family allowance). share of the decedent’s probate
estate.’”

15 WILLS & ESTATES
• The elective share is calculated by first reducing the gross

estate by the exempt personal property set-asides. Next,
Feb 2017, Essay 2
expenses (but not taxes) are paid to arrive at the net probate
July 1996, Essay 3
estate. In some states, testamentary substitutes (i.e. lifetime
transfers or certain non-probate assets) are brought back into
the estate to calculate the net estate. Once the net estate is
calculated, the surviving spouse is entitled to the statutory
percentage (usually one-third), reduced by the value of
the assets that would pass absolutely to the spouse under
the decedent’s will. The surviving spouse is NOT entitled to
the elective share if that amount is less than the amount the
spouse would take under the will.
• Generally, when the spouse elects to take the elective share,
that share comes out of the estate first (usually pro rata from
the other named beneficiaries).
• Most states allow a surviving spouse to claim their elective
share against assets in a revocable trust. Under the Illusory
Transfer Doctrine, if a settlor retains control over the trust
property so that he remains the practical owner of it during
his lifetime, the trust will be held ineffective as against a
claim by the surviving spouse. The critical inquiry is whether
the settlor intended to surrender complete dominion over
the property to the trustee and trust beneficiaries. Under
the Fraudulent Transfer Doctrine, the surviving spouse can
reach assets in a trust if the transfer was fraudulent. In
determining fraudulent intent, courts generally consider the
facts and circumstances surrounding the transfer.
■■ Pretermitted Children
• A pretermitted child is one who was unintentionally left Feb 2015, Essay 6
MED out of a will. If the child was born or adopted after the July 2003, Essay 2
execution of a will, the child is entitled to an intestate share Feb 1996, Essay 2
3 of 49 Exams
of the decedent’s estate UNLESS the child was intentionally
omitted from the will.
• In some states the child is NOT entitled to a share of the estate
if the decedent provided for the child outside of the will or left
all (or substantially all) of estate to the child’s other parent.
• If the child was living at the time of execution, the child is
NOT entitled to a share of the decedent’s estate UNLESS
the child was omitted from the will because the testator did
not know of the child’s existence or believed the child to be
dead.
• Some states presume a child was unintentionally omitted if
there is no evidence otherwise.

15 WILLS & ESTATES
M. Will Contests
■■ Testamentary Capacity
• To have the capacity to execute a will, a testator must be Feb 2004, Essay 1
MED capable of knowing and understanding: (1) the nature and July 2002, Essay 2
extent of his property; (2) the natural objects of his bounty Feb 1995, Essay 5
3 of 49 Exams
(i.e. relatives and friends); AND (3) the disposition that he
is making of that property. Appointment of a conservator or
guardian, alone, does not automatically establish a lack of
capacity.
■■ Undue Influence
• A will is invalid to the extent it was executed under undue July 2009, Essay 9
HIGH influence, and may be invalidated in full or in part. Undue Feb 2008, Essay 1
influence occurs when a person exerts influence that July 1998, Essay 1
overcomes a testator’s free will and judgment. Feb 1995, Essay 5
4 of 49 Exams
• A prima facie case of undue influence is established if: (1)
the testator had a weakness (physical, mental, or financial)
that made him susceptible to influence; (2) the wrongdoer
had access to the testator and an opportunity to exert
influence; (3) the wrongdoer actively participated in drafting
the will; AND (4) there is an unnatural (unexpected) result.
• A common law presumption of undue influence is established
if: (1) a confidential relationship existed between the testator
and the wrongdoer; (2) the wrongdoer actively participated
in the drafting of the will; AND (3) an unnatural result
occurred.
■■ Fraud
• A will may be contested on the grounds of fraud when: (1) July 2009, Essay 9
LOW an individual knowingly makes a material misrepresentation

of fact; (2) with the intent to induce reliance by the
testator; AND (3) the misrepresentation actually induces
1 of 49 Exams
reliance to the testator’s detriment.
• Fraud may occur in the inducement or execution of a
will. Under both, a will is invalid to the extent it was affected
by fraud, and may be invalidated in full or in part.
o Fraud in the inducement occurs when a person
deceives a testator regarding facts related to the
instrument (i.e. property or beneficiaries).
o Fraud in the execution occurs when a person deceives
a testator regarding the nature of the document being
signed.

15 WILLS & ESTATES
■■ Standing to Challenge a Will

• A person has standing to challenge a will if the person: (a) is Feb 2004, Essay 1
MED a beneficiary of the will; (b) should be a beneficiary of the July 2002, Essay 2
will; OR (c) would be financially benefited if the decedent
2 of 49 Exams
died without a will.
■■ No-Contest Clauses
• In most states, a provision (known as a no-contest clause) in a Feb 1995, Essay 5
LOW will purporting to penalize an interested person for contesting

the will or instituting other proceedings relating to the estate
is valid.
1 of 49 Exams
• However, most courts will NOT enforce a no-contest clause
if probable cause exists for instituting proceedings to
challenge a will.
• In addition, no-contest clauses generally DO NOT apply
when: (a) the contestant is alleging fraud or that the will
was revoked by another will, and there is a good basis
for the claim; (b) the contest is on behalf of a minor or
incompetent; (c) the contestant is alleging that the court does
not have jurisdiction; OR (d) the contestant is merely asking
the court to interpret/construe the will’s terms.
■■ Modification of a Will Due to Mistake

• Most courts will permit modification of a will to conform to July 2010, Essay 3
LOW the testator’s intent if there is clear and convincing evidence

of a mistake. Under the UPC (adopted by some states),
a court may modify a will if there is clear and convincing
1 of 49 Exams
evidence even if it’s an unambiguous provision (however,
most courts will not admit extrinsic evidence to do so).
N. Non-Probate Transfers
■■ Joint Bank Accounts & Convenience Account Exception

• Joint tenants of a bank account have the right of survivorship, July 2005, Essay 1
MED and will be entitled to the remaining funds upon the death of July 1997, Essay 7
the other joint tenant. However, a contestant may overcome
2 of 49 Exams
the presumption of the right of survivorship by showing that
the account was set up merely for the convenience of the
parties.

15 WILLS & ESTATES
• If the joint tenant was unjustly enriched by securing the

funds in an account through misconduct such as fraud, undue
influence, or breach of a fiduciary duty, a constructive trust
will be created in which the court will force the tenant to hold
the funds as trustee and return them to the decedent’s estate.
■■ Totten Trusts
• A Totten Trust is created when the depositor opens up a bank July 1997, Essay 7
LOW account for himself as trustee for another. If a beneficiary

to a Totten Trust survives the depositor, the trust shall
terminate and title to the funds vest in the beneficiary free
1 of 49 Exams
and clear of the trust. Totten trusts are revocable both by
will and during the lifetime of the creator. In order to
effectively revoke a totten trust during the creator’s lifetime,
the creator must either: (a) withdraw all funds; OR (b)
deliver a signed, written, and acknowledged revocation to
the bank which names the financial institution and the new
beneficiary. A Totten Trust can be revoked, terminated, or
modified by a provision in the depositor’s will only by (1) an
express direction concerning such trust account, (2) which
must specifically name the beneficiary and the financial
institution.
■■ Life Insurance Beneficiary

• A life insurance policyholder has the power to change Feb 2011, Essay 9
MED beneficiaries during his lifetime. However, such a change July 2005, Essay 1
is generally not permitted through a will, and must be
2 of 49 Exams
changed on the policy directly. The change of an irrevocable
beneficiary requires the beneficiary’s consent, while the
change of a revocable beneficiary does not.
■■ Inter Vivos Gifts

• An inter vivos gift is one made during the donor’s July 1997, Essay 7
LOW lifetime. Transfers of property made during the donor’s

lifetime are NOT subject to intestacy rules or probate. A valid
inter vivos gift occurs when (1) a donor with intent to make a
1 of 49 Exams
gift, (2) delivers the gift, and (3) the donee accepts the gift.
• Delivery of a gift may be constructive when the donor
transfers a means of controlling or taking ownership of the
property rather than the property itself (as through a letter or
a token that represents the gift). Delivery of real property
requires delivery of the deed.

15 WILLS & ESTATES
■■ Invasion of Non-Probate Assets to Pay Creditors

• If a decedent’s estate is inadequate to pay creditors, those July 1997, Essay 7
LOW who receive non-probate transfers may be liable to pay the

decedent’s creditors up to the value of the transfer. Two or
more transferees are severally liable. Generally, a creditor is
1 of 49 Exams
NOT allowed to attach gifts given by a decedent prior to their
death (an inter vivos gift).
O. Powers & Duties of Personal Representatives
■■ Powers & Duties of Personal Representatives

• Personal representatives (i.e. an executor) must handle July 2013, Essay 9
LOW all the matters associated with probate, including filing

necessary paperwork, gathering the decedent’s property, and
notifying creditors, heirs, or devisees.
1 of 49 Exams
• If a decedent DOES NOT name a personal representative in
his will, typically the court will appoint one in the following
order of priority: (1) the surviving spouse of the decedent
who is a devisee of the decedent; (2) other devisees of the
decedent; (3) the surviving spouse of the decedent; (4) other
heirs of the decedent; (5) any creditor (if 45 days have passed
since the death of the decedent).
P. Living Wills & Durable Health Care Powers
■■ Durable Health-Care Power of Attorney & Advanced Directives

• All states have adopted statutes authorizing durable health- Feb 2016, Essay 5
MED care powers and advanced directives. July 2002, Essay 2

o An advance directive (also known as a living will)
2 of 49 Exams
specifies the patient’s preferences for treatment or
non-treatment should he become incapacitated.
o A durable health-care power of attorney gives
a designated agent the power to make health-
care decisions for the principal in the event of the
principal’s incapacity. Unless otherwise provided, an
agent’s power is NOT limited to a particular event,
illness, or time-period.
• The majority of states require that durable health-care powers
and advanced directives be in (1) a signed writing, (2) that
is witnessed or notarized. State laws vary on whether the
person designated as the agent can be a witness to the durable
health care power of attorney. Under the Uniform Health
Care Decisions Act, the designated agent is NOT prohibited
from being a witness. However, in many states, the person
designated as the agent cannot be a witness to the power.

15 WILLS & ESTATES
■■Durable Health Care Power of Attorney & Living

Wills: Insulation of Agent’s Liability
• A typical health care power of attorney insulates an individual Feb 2016, Essay 5
MED acting as agent or surrogate from civil or criminal liability July 2002, Essay 2
(or to discipline for unprofessional conduct) for health-
2 of 49 Exams
care decisions made in good faith. In addition, agents who
are mistaken, but in good faith believe they have authority
to make a health-care decision for a patient, are likewise
protected from liability.
• Health care decisions include: (1) selection and discharge
of health care providers and institutions; (2) approval
or disapproval of diagnostic tests, surgical procedures,
programs of medication, and orders not to resuscitate; and
(3) directions to withhold or withdraw artificial nutrition and
hydration and all other forms of health care.
■■ Family Consent Laws

• An adult may designate any individual to act as surrogate by Feb 2016, Essay 5
MED personally informing the supervising health care provider. July 2002, Essay 2
• In the absence of a designation (or if the designee is not
2 of 49 Exams
readily available), any member of the following classes
of the patient’s family, in order of priority, who is readily
available may act as surrogate: (1) spouse (unless legally
separated); (2) adult child; (3) parent; (4) an adult brother
or sister; OR (5) if none of the previous individuals are
available, an adult who (i) has exhibited special care and
concern for the patient, (ii) is familiar with the patient’s
personal values, and (iii) is readily available. If there are
multiple members in the same class that have priority, a
majority of those members have to agree on the health-care
decision.

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Subject Frequency & Priority

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3. CORPORATIONS & LLC’S 22

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8. CRIMINAL LAW & PROCEDURE 126

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10. FAMILY LAW 164

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12. SECURED TRANSACTIONS 207

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14. TRUSTS & FUTURE INTERESTS 241

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15. WILLS & ESTATES 257

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A. Agency Relationships MEE TIP

HIGH another – the principal. Agency is a fiduciary relationship,

■■ Termination of Agency Relationship

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• Termination of an Agency Contract: When an agency

B. Contractual Liability of Principal and Agent

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• A principal will be bound to a contract even if the agent acted

■■ Inherent Agency Power

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■■ Ratification of Agent’s Contracts

■■ Agent’s Contractual Liability

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3. CORPORATIONS & LLC’S 22

8. CRIMINAL LAW & PROCEDURE 126

10. FAMILY LAW 164

12. SECURED TRANSACTIONS 207

14. TRUSTS & FUTURE INTERESTS 241

15. WILLS & ESTATES 257

A. Agency Relationships MEE TIP

C. Pre-Formation Contract Liability MEE TIP