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Civ Pro Essay Checklist E. Amendments: rights to amend (21d); relation back.

Wrong D: same T/O, new


I. Does court have authority to decide the dispute? D knew of case within 120d, AND D knew but for mistake, would be orig D.
F. Rule 11: no bad conduct; signature reqd on all pleadings/papers; sanctions
A. Personal Jurisdiction: Trad: domicile; presence in state; consent
1.
Jx over non-residents: L.A. statute + constitution: must be suff. contacts as IV. Are proper parties before the court? (Joinders)
to not offend trad notions of fair play and sub. justice A. Compulsory joinder: nec if ct cannot accord complete relief w/o A, As interest
2. Test: My Parents Frequently Read Funny Childrens Stories may be harmed if not joined, A claims int. that subjects a party to mult. obligs.;
3. Min: PV, Foresee; Rel: S/G syst. and continuous such that D is essentially A can/must be joined if PJ & would not destroy SMJ or venue. If not feasible,
at home; Fair: conv. , states interest must proceed w/o A or dismiss. Ct: prejudice to A, if prej can be reduced,
4. In rem & quasi in rem jx: over Ds property, same as PJ adequacy of jdmt w/o A, and whether A will have adequate remedy.
B. Subject Matter Jurisdiction: state courts = general jx: fed = limited jx B. Permissive joinder: parties w/claims arising from same T/O; raise common Q
1. Fed Courts: Diversity jx: diverse parties (person=presence+intent, C. Joinder of claims (suppjx): Impleader (indem, contr.; TPDv.P); intervention
corp=incorp+PPB) AND amt in controversy > $75K (agg. P v. Ds if JT); (right: harmed if not joined and int is not adequately repped now/permissive:
Fed Q jx: P = enforcing a fed right (claims arising under fed law) allowed unless delay or prej); interpleader (prop, R22, stat)
2. Supplemental jx: ok if shares common nucleus of operative facts D. Class Actions: in FC, req numerosity, commonality, typicality, adequate rep
i. Ps cant use to overcome lack of diversity in diversity case a. 3 types: prejudice; injunction; damages (common Q; superior means)
ii. Discretion: FQ dismissed early, complex state claim, state predominate b. CA: one type; req (1) ascertainable class; (2) well-defined cmty of interest
3. Removal: if satisfies FSMJ, D can remove from state to fed court; (common Qs predominate, rep is adequate, class will result in sub. benefit)
CANNOT if D is citizen of forum or more than one year after filing V. Have parties properly propounded & replied to discovery?
C. Venue A. Types of discovery: depos (25) (NP); interrog (10); req to prod (NP); physical/
1.
Proper: where any D resides (if all in same state); substantial part of claim mental exams (ct order, GC, actual contro); req. for admis.; required disclosures
arose; OR where any D subject to PJ (not CA); duty to supp (Not CA)
2. Transfer: If orig improper-> may transfer in interest of justice OR dismiss. B. Scope of discovery: things reasonably calculated to lead to admissible evid
If orig proper -> may transfer for convenience to where it could have a. WP: abs: mental impressions, opinions, conclusions, legal theories, others:
originally been filed (transferee must have PJ, SMJ, venue) sub need & not otherwise avail; priv: not dis., need log, CA: R2P
3. Forum non conveniens: transfer to more appropriate outside ct (rare) C. Enforcement (sanctions): Mtn to compel + costs +cert GF attempt
D. Erie (choice of law): fed courts apply state substantive law in diversity cases a. Partial: order+sanction, Total: sanction, Possible sanctions: treat facts as
1. If unclear, ask: (1) Arg. Procedural Fed law on point? (if so, fed trumps); admitted; disallow evid; strike pleadings; dismiss Ps case; enter default
(2) state law if: elements, SOL, conflict of law (3) Outcome determinative? judgment (if bad faith); contempt. CA: must confer b/f ct order
Balance of interest? Promotes forum shopping? VI. Can the dispute be resolved without a trial?
II. Service of Process A. Failure to state claim (12(b)(6); general demurer (failure to plead factsclaim)
A. P must notice D w/(1)summons; (2) copy of complaint B. Voluntary dismissal: ok w/court order, w/o prejudice if before D serves A
B. Methods: personal; substituted (only after personal fails, 18, must mail too); on C. Involuntary dismissal: ct. discretion (failure to prosecute, demurrer, etc)
agent; waiver/service by mail; publication. Immunity for fed, but not CA. D. Mandatory dismissal: CA only, if not brought to trial w/in 5 years, D not
III. Are the pleadings proper? served w/in 3 year
E. Default: 21(30)d, J entered if: D made no response at all, claim is for a sum
A. Notice pleading (fed) (allege facts supporting plausible claims) vs. fact
certain in money, C gives an affidavit of sum owed and D is not a
pleading (CA) (ult. facts on each elem. of COA)
minor/incomp. If none, P must go to judge for hearing. D can show GC.
B. Complaint: statement of SMJ; stmt of claim; demand for relief. Heightened:
F. Summary Judgment: moving party must show no genuine dispute as to a
fraud, mistake, special dmgs. Fic D: allege unaware of Ds ID and state COA
material issue of fact and entitled to SJ (may be partial), may look at evid.
C. Ds response: (1) motion (Rule 12); or (2) answer (response, defenses); 21 ds
a. CA: general demurrer (failure, SMJ); special demurrer (ambig, cert, joind); VII. Pre-Trial Meetings
motion to quash service of summons (PJ, process, serv); motion to strike A. Rule 26(f) conference (FC only): parties confer/discuss defenses, possibility of
(irrel, cert); anti-SLAPP (FA rts); answer (w/in 30 days) settlement, initial disclosures, discovery plan (not CA)
D. Counter claim (against P): compulsory (from same T/O) or permissive; Cross B. Pretrial conference: held as needed; final determines issues/evid to be tried
claim (against co-party): same T/O; not compulsory; SMJ or SJ reqd VIII. If there is a trial, who will decide the matter?
A. 7th A: right to jury trial for legal issues, not equity. If both, hear legal issues with
jury first. Demand in writing CA: similar, except equitable issues first
B. JMOL (DV): reasonable people could not disagree on result, viewed in light
most favorable to nonmoving party; D can raise after Ps evid and close of all
evid; P only once after evid; CA: can only move at close of all evid; if raised at
close of Ps opening or Ps evid, called motion for nonsuit.
C. RJMOL (JNOV): post-judgment; in FC moving party must have raised JMOL
D. Motion for new trial: start over b/c of trial errors (judge discretion); grounds:
prejudicial error/misconduct, new evid, excessive/inadeq dmgs (remittitur: P
accepts less, additur (CA only): D must pay more)
IX. Can the decision be APPEALED?
A. Final judgment rule: can only appeal final judgments (ult decision by the TC
on the merits of the entire case), NOT grnt of new trial or remand
B. Exceptions (interlocutory appeal allowed): pretrial orders involving
temporary remedies; FJ on collateral matters; orders of great imp determ to
outcome), denial of class action certification
X. Is the decision binding in future cases?
A. Applicable law: First syss law regarding claim/issue preclusion applies. If
claim has been appealed, is jgmt entitled to preclusive effect? Fed: yes, CA: no
B. Res Judicata (claim preclusion): prevents reassertion of Cs COA if there was
a FJ on merits (not jx, venue, joinder), same parties (same config), same claims.
CA: primary rts theory one COA for each right, even if same T/O
C. Collateral Estoppel (issue preclusion): 1) C1 ended in a valid, final jgmt on
merits 2) same issue was actually litigated and determined, 3) issue was
essential to jgmt in C1, 4) against one who was a party to C1, 5) asserted by
1. Mutuality: only by one who was party to C1 (not CA)
2. Non-mutual: by one who was NOT a party to C1 and
a. Who is now a D in C2 (defensive) allowed if new P had full chance to
litigate in C1;
b. Who is now a P in C2 (offensive): only allowed if fair: D had full/fair
opp to litigate C1, D could foresee multiple suits; P could not have
joined easily in C1, no inconsistent jdmts on record.
D. Who is bound? Parties, privies to parties, not strangers but may take advantage
of CE if jx rejects mutuality, other jx (full faith and credit: when ct had PJ over
parties and ct issued a FJ on merits, not req for foreign country jdmts)
Community Property Checklist IV. Effect of parties actions on characterization of assets
I. Basic Principles A. Installment purchases bef marriage + payment w/CP after; or
A. Statutory defs: apply unless character of asset was altered by parties inherits land w/mtg & pays off w/CP: comm. takes pro rata portion of
agreement, parties conduct, or how title was taken prop, measured by amt of PRINCIPAL DEBT REDUCTION b/c expenditure of
a. SP: owned before marriage; acquired during marriage by gift, will, inher. or CP funds
expenditure of SP (source rule); rents/interests/profits/inc. from SP a. Life insurance: pro ration unless term policy (last premium controls)
b. CP: all prop other than SP acquired during marriage (wages, salary, etc.); B. Improvement of SP w/CP: cant feather own nest
community presumption that assets acquired during marriage = CP a. CP own SP: comm. can reimburse for greater of imp. cost or value
B. When community ends: permanent, phys. sep. + intent not to resume b. CP others SP: split (some jxs say gift; other say reimbursement = ok)
C. CP @ divorce: divided 50/50 unless contrary agreement; econ circ. c. SP CP: anti-Lucas if div (pre-1984 DIP); Lucas on death (no reimb.)
warrant certain assets one spouse (and div. still 50/50 in $$ terms) C. Commingled bank accounts: doesnt transform/transmute, but party
a. Earning disparity: ONLY relevant for alimony/child support claiming use of SP bears BOP to show asset acquired w/sep funds
b. When pro-rata div maybe ok: house + kids; CC stock/CEO; pension a. Family expenses: presumed made w/CP; can prove SP by showing
paymts exhaustion of CP funds or by direct tracing (SP avail + intent to use)
c. Statutory exceptions: may recover < 50% if deliberate misapprop; ed debt; V. Characterization problems raised by certain assets
indiv. tort liability; PI awards (injured spouse); negative community A. Prev. owned bus. val: Pereira: SP = mgrs sep. K + interest on SP (favors
D. Lifetime/testamentary gifts of CP: cant gift CP w/o Ss written CP); Van Camp: CP = FMV of Ss services fam expenses paid from CP (bal
consent (Recov: offset assets on divorce, or set aside gift as to Ss SP) = SP)
a. Fed law > CP: purchase of fed prop trumps CP interest (may bar recovery) B. Pension benefits: CP if acquired during marriage (pro-ration applies); if not
b. Power of disposition: over ALL SP + CP (except: widows election) matured, S can receive if decree redc, ct can cash out or retain jx till mature
E. Credit acquisitions: during marriage = presumptively comm. credit a. QDRO: NPS if divorces (but will lose if predeceases b/c fed trump)
a. Borrowed funds: classified by primary interest of lender (i.e. loan secured C. Disability/workmans C: classif. when recd; cant elect to defeat Ss interest
by mortgage on SP may be SP obligation for that %) a. Severance pay: split of authority; USFSPA: retire rts to military spouses
b. Subseq. actions: by H/W may char. of asset (i.e. paying SP debt w/CP) D. Stock options: pro-rated based on intent of employer
F. Fiduciary duties btw Ss: b/c CR, must act in good faith + deal fairly a. Rwd past svcs (Hug): mos. from emp sep/mos. from emp exercise
a. UI presumed: if 1 S gains adv. from transaction (bears BOP to disprove) b. Keep S (Nelson): mos. from O grant sep/mos. from O grant exercise
II. Transmutations (s in characterization of assets) E. Goodwill: CP if acquired during marriage; value by EW testim or excess
A. Prenups: SOF applies unless oral + fully performed, or det reliance by S earn
a. Contents: anything but child/spousal support (i.e. salaries, prop dispo) F. Ed expenses: degrees = not CP; loans paid w/CP reimburseable UNLESS
b. Defenses: not signed vol (+ no indep. rep); unconscionable when made (no comm already subst. benefited; other spouse got CP ed; d need for spousal
fair disclosure, no waiver of disclosure, no actual knowledge) support
B. Marital agmts: pre-1985 oral transmutations ok; post-1985: written + VI. Tort & K liability and management problems
signed by S whos interest adversely affected + expressly states A. Damages recd from TP: CP (but injured spouse on div/sep)
III. Effect of how title was taken B. Judgments: CP subject to liability against either spouse; but depends on
A. Married Womens Special Presumption: pre-1975 prop taken in Ws order (if comm act, CP 1st, if personal act, SP 1st, never OSs SP)
name = presumed Ws SP (unless otherwise intended) a. If S = other tortfeasor, recovery = SP
a. Not rebuttable against BFP; but maybe by H if shows alt. reason for W title C. Equal management/control: over CP (can K, sell, incur debt, etc.)
B. Title taken in joint & equal form: presumptively CP (Lucas); SP a. Business exc: S operating CP business has primary mgmt/control
used to acquire = presumed gift to comm. (absent agmt to contrary) b. Personal belongings: cant sell personal prop form home w/o Ss consent
C. Anti-Lucas statutes (apply on div/sep): can rebut presump by express c. Prop conveyances: req joinder of both Ss; 1yr SOL to set aside (even if
statement in deed/title or written agmt of parties (saying SP, not CP) BFP)
a. Post-1984: contrib. of SP to acquisition/improve may recover for DIP d. Cant transfer interest in CP (except fam attys real prop lien @ div)
e. Premarital debt: CP (but non-debtor spouse can protect earnings)
f. After div: creditor cant reach CP awd unless S incurred or order to pay
VII. Multistate problems
A. Quasi CP: proper acquired while H&W domiciled in non-CP state;
treated basically same as CP (50/50 split on div, etc.)
a. Avoid situs rule (real prop): awd land to 1 S; rely on personal jx
b. Must divorce/outlive S to get share of acquiring quasi-CP (@ death, get
QCP titled in Ds name, but no interest in QCP titled in survivors name)
VIII. Property acquired outside the marital relation (Quasi CP)
A. No CL marriages in CA: only spouses & DPs hold CP
B. Cohabitating Ss: governed by K law (express/implied from conduct; ok
as long as not based solely on sex)
C. Putative spouses: if one S has objectively reasonable & GF belief in
lawful marriage; assets acquired = QMP (split 50/50 like CP)
COMMUNITY PROPERTY ESSAY CHECKLIST

Question 1: Does CA Community Property law apply?


If yes Basic Approach: (1) source; (2) actions; (3) presumptions; (4) management/control; (5) dispositions
1) What is the source of the item?
2) Have any actions by the parties altered the character of the property?
3) Do any statutory presumptions apply?
4) Are any issues raised as to management and control of property during marriage?
5) Based on 1-4, how should the item be divided?
Intro: The characterization of an asset as CP or SP depends on three factors: (1) the source of the item, (2) actions of the
parties that may have altered the character of the item, and (3) any statutory presumptions affecting the item.
I. SOURCE OF ITEM
A. Earnings: CP if earned during marriage
B. Pension Rights: CP (for all rights/benefits accrued during marriage)
C. Disability & Workers comp: classified when received (CP if during marriage; SP if after separation)
D. Employee Stock Options: 2 pro-ration formulas (marriage of hug; marriage of nelson), must be employed to use
E. Severance Pay: split of authority (argue both ways)
F. Federal Benefits: trump CP; QDRO rights claimable on divorce, but disappear of claiming spouse predeceases
G. Personal Injury Damages: CP, but on divorce awarded entirely to injured spouse
H. Gifts: SP, unless conveyed jointly to H&W
I. Real Property: CP if bought during marriage; if before, CP takes pro-rata portion of property (principle debt
reduction attributable to CP expenses/purchase price)
J. Rents, Issues & Profits: Pereira vs. Van Camp (for d value of business owned before marriage)
K. Life Insurance: pro-ration applies; unless term insurance (character determined by last premium payment)
L. Education & training: not CP; equitable right to reimbursement if s earning capacity (but see defenses)
M. Goodwill of professional practice: CP if acq. during marriage, valued by EW or capitalization of excess earnings
N. Quasi-CP: prop acquired while H&W domiciled in other state; treated like CP once in CA
II. ACTIONS BY PARTIES
A. Agreements btw spouses affecting property: pre-1985 could be oral; post-1985: signed + writing + expressly state

a. Prenups: signed + writing (unless executed or det reliance); exceptions for involuntary sig, unconscionability
B. Gifts of CP: cant gift CP w/o others written consent; small gifts to spouse = ok
C. Commingling of SP & CP: allowed; if in bank acct must be able to trace SP
D. Community services/funds used to improve SP: community has reimbursement claim for cost or enhanced value
E. Separation: community ends upon permanent physical separation + intent not to resume
III. STATUTORY PRESUMPTIONS
A. General presumption of CP: all prop acquired during marriage
B. Undue influence: 1 spouse gains advantage from transaction (violates fiduciary duty, bears BOP to show no breach)
C. Married Womens Presumption (pre-1975): prop taken in Ws name = Ws SP (if W + 3rd party, presumed T in C)
D. Prop taken in joint & equal form: CP, absent agreement to contrary
a. Anti-Lucas: rebut by (1) express statement/written agreement; (2) reimbursement for post 1984 SP DIP contrib.
E. H&W CP Presumption: Lucas (prop acquired in joint & equal form = CP); Anti-Lucas statutes (rebuttable
presumps)
IV. MANAGEMENT/CONTROL ISSUES
A. Of community personal & real property: equal management powers (can buy, sell, K, incur debts, etc.)
B. Of CP business: operating spouse has primary management/control (but still CP for dissolution purp.)
C. Debts owed to 3rd parties by H&W: CP subject to tort liability of either spouse (may reach liable Ss SP too)
a. K liability: for debts incurred during marriage (debts incurred at time obligation to pay arises)
V. DIVISION
A. CP/Quasi-CP: divided 50/50 (absent agreement or warranted by economic circumstances)
a. Statutory exceptions: misappropriation; ed debt; individual tort L; personal injury awds; negative community
B. Widows Election Will: surviving S can elect btw will conveying > interest in CP (w/resid clause) vs. intestate
share
C. Breach of fiduciary duties: must act in good faith/deal fairly; no reckless investments (may be PL)
Notes:
- Under anti-Lucas statutes, a spouse who deeds SP into jointly titled property is entitled to reimburse the FMV of
the prop when deeded into JT
- Education = not CP; instead, CA Fam Code creates equitable right of reimbursement (inc. interest) when CP used
to fund education or training, and the education or training substantially enhances the earning capacity of a spouse
o Recent decisions: also support reimbursement for living expenses to support spouse in school
o Equitable defense: rebuttable presumption that community has already benefited if >10 years have
elapsed btw contributions & initiation of divorce
- State up front what is SP and what is CP
- The probate code refuses to make any gift presumption from the form of title held in a commingled bank account
and allows full tracing of separate funds unless the parties have agreed otherwise
- Debts are incurred at the time the obligation to pay arises
Constitutional Law Checklist B. BOR: applies directly to fed govt; to states thru DPC of 14th A (see exc.)
I. The Federal Judicial Power (defined by Article III) C. Levels of scrutiny: RB (RR to LGI); IS (SR to IGI); SS (N to CGI)
A. Rqts for cases/controversies: standing (personal injury/future harm + VI. Due Process
redressablility); ripeness (adeq record); mootness (but see ex); political Q A. Procedural DP: cant take away life, liberty or prop w/o DP
a. NO TPS: unless close relationship; TP cant assert own rts; associational a. Liberty: freedom; K; employ; parenting; prop: unfulfilled entitlement
B. SC review: certiorari (opt.); 3-J DC appeals; original jx btw state govts b. Process: balance imp of Ps interest; will process fact finding, efficiency/
a. Can only hear after final judgment; NO indep & adequate stat grnds cost to determine if addl hearing reqd; prisoners have less protection
C. Lower fed ct review: no suits against states (11th A) unless waiver, B. Substantive DP: law of general applicability infringing on right (SS if FR)
authorization by C (5 of 14th A); fed govt suing state a. Takings clause: G can take priv prop for pub use w/just compensation
a. Abstention: reqd if disposition rests on unsettled state law Q (possessory/reg if deprives all econ value; comp= FMV of loss to O)
II. The Federal Legislative Power b. Contract clause: states cant impair the obligations of Ks (IS review; SS for
interference w/govt Ks); no ex post facto laws; no bills of attainder
A. Congress authority to act: can tax/spend for the general welfare
c. FR to privacy: marry; procreate; custody of children; keep fam together;
a. Police power: limited to MILD (military; indian res; land; DC)
control kids upbringing; purchase/use contraceptives; abortion (post
b. Necessary & Proper Cl: may adopt all laws N&P to carry out own authority
viability reg ok if not UB); gay sex; refuse med treatment
c. Commerce power: plenary; channels/instrum of IS; econ active affecting IS
d. Other FR: travel & vote (EPC); speech; association, free ex. of religion
d. 10th A: ungranted powers states/people; cant compel state reg activity,
but can induce if conditions/purpose relate VII. Equal Protection (14th A state/local govt; EP fed govt thru 5th A)
e. 5 of 14th A: may adopt P&C laws to enforce rts; cant create/expand rts A. Race/natl origin: SS; if facially neutral req impact + intent
f. War: declare war; raise/support troops; reg economy; military cts B. Gender: IS; impact + intent if FN; no benefits based on role stereotypes
B. Delegation of powers: ok to exec; judic; no exec power to self/officers C. Alienage: SS; IS for undoc kids; RB for voting/jury/PO/teacher/prob or C disc.
a. Bicameralism/presentment: reqd to act; no legislative/line item vetoes D. Legitimacy: IS (cant deny ben to non-marital kids allowed to maritals)
III. The Federal Executive Power E. All other discrim = RB: i.e. age, disability, wealth, econ, sex-orientation
A. Foreign Policy: treaties (+ 2/3 sen. app); exec agreements; dep of troops VIII. 1st Amendment (Freedom of Speech & Religion)
B. Domestic Affairs: can veto C acts w/in 10 days; subj to 2/3 H override A. Methodology: content-based (SS); content-neutral (IS); prior rest (SS)
a. Appt powers: ambassadors; fed judges; US officers (w/sen conf) a. Facially invalid: vague, overbroad, unfettered disc. in licensing official
b. Removal: of any exec branch Off; C may limit if office where indep = imp b. symbolic speech: ok if imp int unrel. to msg + impact no greater than nec.
c. Impeachment: pres, VP, US Off for treason, bribery, high C&M (2/3 H vote) B. Unprotected/less protected speech
d. Immunity: to civil suits for $$ dmgs for actions while in office a. Incitement: subst likelihood of imm illegality + directed at causing illegality
e. Pardon: for fed crimes (save impeachment); not for civil suits/contempt b. Obscenity: prurient interest/patently offensive (local) + lacks SLAP value
f. Exec priv: for pres papers; conversations (not absol.; govt int. may trump) (natl); can BAN child porn; reg adult bookstores; cant punish priv. poss.
IV. Federalism c. Profane/indecent speech: protected, except schools & broadcast media
d. Commercial speech: false/deceptive ads not protected; otherwise IS
A. Preemption: const, laws & treaties = supreme law of land (supremacy cl)
e. Defamation: not protected (if pub figure/concern, falsity + malice req)
B. Dormant Commerce Clause: state/local laws cant place UB on IC
f. Privacy & 1st A: no L for truthful rep of info lawfully obtained from G
a. No discrim unless nec to IGI + LRmeans; Ex: C approval; state = mkt partic
g. Speech by govt emp: not protected if on job in scope of duties
C. P&I Clause: cant burden econ activ/CL of out-of-staters unless nec to IGI/LR
C. Places available for speech: pub forums + LPF (time/place/manner ok if CN &
a. 14th A P&I: states cant deny citizens P&I of US citizenship (i.e. rt to travel)
IGI); non-pub (RB + viewpoint neutral)
D. State taxation: cant tax goods in IS commerce/favor in-state bus.; no taxing
D. Freedom of assoc: SS for laws that prohibit/punish group membership
w/o substantial nexus to state; must be fairly apportioned
a. D must be: actively affiliated; knows of illegal activ; has intent to further
E. Full faith & credit clause: FCC if jx + judgment on merits + FINAL
E. FEC: cant punish relig beliefs, only behav; gen applicability ok unless bad intent
V. Constitutional Protection of Individual Liberties F. Establishment: NO laws respecting establishment of religion
A. State Action Reqt: const applies to govt action (+ pub function; entangle) a. Lemon test (SEX): sec purpose + no endorse/inhib + no excessive entangle
a. Reg of private conduct: allowed thru CC; 13th A; not 5 of 14th A b. No direct $ to relig sch (univ/hosp ok); indirect ok if also to pub/no rel use
Contracts Big Picture Qs
(answer very tactfully to prevent ridicule)

1. Applicable Law? (Common Law/UCC)?


2. Is there a Valid K?
3. What are the Terms of the K?
4. Are there any Third party rights or obligations?
5. Has the K been Performed (or are there performance issues)?
6. Remedies?

(AVTTPR: applicable law; valid K; terms of K; TPB; performance; remedies)


Contracts Checklist e. Consid substitutes: written prom to satisfy existing obl. barred by SOL
I. Vocab & Applicable Law (moral consid); detrimental reliance (enforcement nec. to avoid inj.)
B. Lack of Capacity: < 18; mental incomp; intoxicated (if other party knows)
A. Contract: legally enforceable agreement
a. Remedy: disaffirm (incap. party); implied affirmation; quasi-K (necessaries)
a. Bilateral: results from offer open as to method of acceptance
C. SOF: applies to promises in consid of marriage; estate reps offer to pay debt
b. Unilateral: expressly requires performance for acceptance (i.e. reward)
personally; guarantees (answer debts of another); long-term service Ks (>1
B. Quasi-K: equitable remedy to prevent unjust enrichment (applies when benefit
year); real-estate transfers; sales of goods > $500 (must statequant)
conferred + expectation of payment + other party unjustly enriched)
a. How satisfied: writing (material terms); signed by party to be charged
C. CL: services, emp, real-estate; UCC Article II: sale of goods Ks
i. Service Ks: writing or full performance
II. Formation : Offer ii. Goods Ks: part perf satisfies (extent of perf.); subst. begin for spec. K
A. Rule: manifestation of commitment; need not contain all material terms iii. Real estate: 2/3 of - full/part payment; possession; improvement
a. Real estate: price + land description; Goods: missing price = ok (need amt) b. UCC exception: if 2 mchts; one receives signed writing + quant term
b. No vague/ambiguous material terms (i.e. fair/reas. price no offer) claiming K; must reply w/in 10 days or no SOF defense
c. Output/rqt Ks: K amt per buyers rqts, Ss output, or exclusivity (no disp.) c. Equal dignity rule: if K w/in SOF; authorization to enter must be written
d. Ads NOT offers unless: rewards, specific quant + who can accept d. Modifications: if original + w/in SOF; must be in writing
B. Termination: kills offer (cant accept DEAD offer); 4 means D. Illegality: illeg. SM unenforceable; illeg. purp. enf. by P who didnt know
a. Lapse of time: time stated or reasonable time (i.e. > 1 month) E. Public Policy: ct can refuse to enforce (exculp Ks; unreas. cov not to compete)
b. Revocation: words/conduct of offeror (offeree must know); not revoc. If: F. Fraud/Misrepresentation: may cancellation/rescission of K
i. Option K: promise not to revoke + payment for promise G. Duress: physical/economic; improper threat + D w/no reasonable alternative
ii. Firm offer (<3 mo.): goods K + merchant S + written prom. to lv open H. Unconscionability: procedural (unfair surprise) or substantive (oppressive
iii. Detrimental reliance: by offerree that is reasonably foreseeable terms); applied at time K entered; can all or part unenforceable
iv. Start of performance: if unilateral K (> mere preparation) I. Misunderstanding: no K if material term subj. to 2 reas. interps + parties
c. Rejection: express or indirect (counter-offer; conditional acceptance) attached diff meanings + neither knows of others meaning
i. Mirror image rule (CL): acceptance adding new terms = counter-offer J. Mistake of fact: no K if both mistaken + basic assump of fact + materially
ii. UCC: response + new terms K (if 2 merchants addl term inc. unless affects K + neither party bears risk (value = never basis for mistake)
obj. or materially s K; if 1 = nonM then addl term = sep. proposal) a. Unilateral: only void K if palpable, or disc. before reliance by other
d. Death/incapacity of either party: except options; part-perf of unilat K V. Terms of the Contract
III. Formation: Acceptance A. PER: final integ. written K controls; prior/contemp statements = inadmissible
A. Who can: person who knows of & receives offer (non-assignable, unless opt. K) a. Exceptions: mistake in integration; prove defense to enforcement (i.e.
B. Methods: full performance (notice reqd if distant O); start of performance; fraud); explain terms of the K; adding terms if only partial integration
promise to perform; unilat Ks: require completed performance (implied by acc.) B. Conduct: course of performance > course of dealings > custom & usage
C. Mailbox rule (K by mail): comm. dont count till arrive; acceptances effective C. UCC default terms for sale of goods Ks
when sent; if rejection sent 1st, nothing counts till arrives (even accept.) a. Delivery obligation: default = Ss place of business; if using common
D. Wrong goods sent: acceptance + breach (unless accommodation provided) carrier shipment K: get goods to carrier, make reas. arrangements for
IV. Defenses to Formation deliv, notify B; delivery K: liable until goods reach B (FOB = final dest.)
A. Consideration: bargained for legal detriment (person & promise specific) b. Risk of loss: determ. by (1) agreement; (2) who breached; (3) delivery by
a. Forms: performance; forbearance; promise to perform/forbear; no illusory comm. carrier ( B once Ss oblig. fulfilled); (4) if no ag/breach/CC; then
promises (i.e. unless I mind); adequacy = irrelevant B upon receipt if mcht seller, or B upon tender if non-mcht seller
b. Past consideration: NOT consideration (unless express req + expect. of $$) c. Express W: if S promises/describes/states facts or shows model to B
c. Preexisting duty: NOT consideration (unless promise is to 3rd party, $$ for d. IW of merchantability (if S = mcht): ord purpose for which goods used
addition/ in perf.; or perf. otherwise excused) e. IW of fitness for particular purpose: partic purp + reliance + S knows
i. K Modifications: CL new consid reqd; UCC good faith f. K limitations on warranty liability: can only disclaim implied warranties
d. Forgiving debt: consideration if debt = due and undisputed (i.e. as is); can limit remedies for breach if not unconscionable
VI. Performance E. Excuse because of modification or later K:
A. CL: Governed by terms of K a. Rescission: cancels K (ONLY if performance not complete)
B. UCC: perfect tender reqd by S (if not, B can reject some or all); if < perfect T, B b. Accord & Satisfaction: new K (accord) extinguishes old upon performance
can retain + sue for dmgs; reject all/part + sue for dmgs, unless: of new K (satisfaction), i.e. payment in full
a. Cure: if S had reasonable grounds IT would be ok; or still time to perform c. Modification: agmt by both parties that new K will satisfy old oblig.
b. Installment K: rqs/authorizes deliv in separate lots w/sep. accept. (can d. Novation: agmt by both parties to subst new party into K (rep old P)
reject installment only if substantial impairment) F. Excuse b/c later, unforeseen event:
c. Acceptance: unless no opp for inspection; implied after certain time a. Impossibility (obj.): phys incapacity, illegality, destruction of SM imp.
d. Revocation of acceptance: only if subst. impairment + excusable ignorance b. Impracticability (subj.): extreme/unreasonable difficulty
/reliance on Ss assurances + w/in reas. time of discovering nonconformity c. Frustration of purpose: unforeseen occ. eliminates purpose of perf.
d. Destruction of SM: if Ss risk, must perform if can; if Bs risk, must still pay
VII. Remedies for Unexcused Nonperformance
e. Subs law/reg: if illegal perf, impossibility; if illegal purp, frustration
A. Nonmonetary remedies:
IX. Third-Party Beneficiaries
a. Specific perf: $$ wont suffice (i.e. real estate, unique goods); not for svcs
b. Reclamation: if insolvent B + dmd w/in 10 days of rec. + B still has goods A. Rule: if parties K to benefit TP, TP can sue for breach if unperformed
c. Entrustment: i.e. jeweler sells Ps watch instead of fixing it; if 3rd party buys B. Cancellation/modification: need TP consent if rts have vested (knows + relies)
w/o notice NO K REMEDY (tho maybe under conversion) C. Who can sue? TPB promisor; promisee promisor (unless TPB did already);
B. Money damages for breach of K: goal = compensate P creditor TBP promisee on pre-existing debts (incidental TPBs dont recover)
a. Expectation (default): put P in same position as if K performed D. Defenses: promisor can assert SAME defenses against TPB as promisee
b. Reliance: put P in same position as if K never happened X. Assignments & Delegations
c. Restitution: put D in position as if K never happened, give Ds profits to P A. Assignment: K btw 2 parties + 1 party transfers rights to TP (who can enforce K)
C. Damage rules for sales of goods: how to calc expectation damages a. Limitations: can be provided in K; valid unless invalidated (not just
a. S breach, B keeps: FMV if perfect FMV as delivered prohibited); CL: no assignments that materially duties of obligor
b. S breach, S keeps: FMV when breach disc. K price; or rep. price K price b. No consideration reqd: but if assmt given for value, assignor warrants
c. B breach, B keeps: K price that assigned right exists and assignor wont impair it
d. B breach, S keeps: K price FMV @ deliv; or K price resale price; if lost c. Rights of parties: assignee O (has same defenses as against assignor);
volume seller (reg inventory + B breach + resale) dmgs = lost profits payment by O assignor ok till O knows of assignment
D. Additions/Limitations: all damages must be proven w/reasonable certainty! d. Modifications btw O & assignor: ok if O doesnt know of assignment
a. Incidental dmgs: ALWAYS recoverable (i.e. cost of finding replacement) e. Multiple assignments: if gratuitous, last in time wins (freely revocable,
b. Consequential dmgs (from special circ.): if foreseeable to D at time of K unless delivered writing, indicia of ownership, det reliance); if for
c. Avoidable dmgs: NO recovery if could avoid w/o UB on P (Ds BOP) consideration, 1st in time wins (unless no notice + indicia of ownership)
E. Liquidated Damages: ok if dmgs difficult to forecast + forecast = reasonable B. Delegation: party transfers K duties to TP
VIII. Excuses of Nonperformance (something happened after K made) a. Valid unless: K prohibits delegations OR assmts; K calls for very special
A. Other partys improper perf (CL): dmgs for any breach, but only material skills; person to perform has special reputation
breach excuses perf (not material if subst. perf; if divisible K, applies per perf.) b. If TP fails to perform: can sue delegator (always liable) or TP if recd consid
B. Nonoccurrence of a condition: basis for excuse; can be precedent or subseq.; if
express, strict compliance reqd (difft from conditional accept counter offer)
a. How excused: statement of release/waiver by benefiting party; estoppel
C. Anticipatory repudiation: unambig statement OR conduct indicating non-
performance prior to time performance due
a. P can: await perf; immed sue for breach; suspend own performance
b. Retraction of AR: ok if no material in position by OP (+ maybe assur.)
D. Insecurity: if ambiguous statement sugg. nonperf; P can stop perf if reas.
grounds for insecurity + no adeq. assurances + commercially reasonable
Contracts Essay Checklist D. Modifications: (1) CL: additional consideration reqd (variance on both
I. DOES THE UCC APPLY? sides); (2) UCC: no consideration if good faith; check for SOF issues
A. UCC governs all Ks for sales of goods IV. 3RD PARTIES RIGHTS OR OBLIGATIONS
B. Special rules for transactions between merchants A. Third Part Beneficiaries (TPBs): can sue for breach if rights have
C. Common Law applies if UCC does not (i.e. service Ks) vested
II. IS THERE A VALID K? a. Ask: Intended or incidental? Creditor or donee? Have rights vested?
A. Is there an offer? (1) manifestation of a present intent to K b. Who can sue whom: TPB promisor; promisee promisor;
demonstrated by promise, undertaking or commitment; (2) definite & creditor TPB promisee on pre-existing debt
certain terms; (3) communicated to identified offeree c. Defenses: promisor can assert def against promisee against TPB
B. Has the offer been terminated? B. Assignment of rights: valid unless materially alter obligors duty or
a. Lapse of time risk, or prohibited by law (assignor can no longer recover from O)
b. Revocation: words/conduct of offeror terminating offer a. Multiple assignments: 1st in time (if consid.); last in time (gift)
i. Effective when received by offeree, unless irrevocable C. Delegation of duties: permitted except where prohibited by K, K calls
ii. Irrevocable: option Ks; merchants firm offer; detrim. reliance for special skills, or party to perform K has special reputation
c. Rejection: words/conduct of offeree rejecting offer V. PERFORMANCE
i. Indirect: counter-offers; conditional acceptance; new terms (CL) A. Conditions: (1) express/implied/constructive; (2) precedent/subsequent
d. Termination by law: death/insanity of either party; destruction of a. Satisfaction of conditions: if express, must be literal satisfaction
subject matter of K; supervening illegality b. Excuse of conditions/performance: other partys improper
C. Acceptance performance; waiver; non-occurrence of condition; anticipatory
a. CL mirror image rule: acceptance must mirror the offer (if repudiation; insecurity; later K; later, unforeseen event; estoppel
doesnt, treated like a counter-offer) B. Discharge of Duties: impossibility (obj.); impracticability (subj.); death
b. UCC: acceptance adding terms may be valid (battle of the forms) or physical incapacity; illegality; destruction of SM; frustration of
i. If btw merchants: addl term = valid UNLESS (1) materially purpose; rescission; novation; accord & satisfaction
changes offer; (2) offeror objects; offer limited to its terms C. Breach: minor or material (only material excuses performance)
c. Methods of acceptance: promise to perform; starting; completion VI. REMEDIES
d. Mode of acceptance: manner authorized by offer; any reas. Manner A. Damages
e. Mailbox rule: acceptance effective upon dispatch (but limitations) a. Compensatory: (1) expectation damages (benefit of the bargain);
D. Consideration: (1) bargained for exchange; (2) legal detriment/benefit (2) consequential (special) - must be foreseeable at time of K
a. Adequacy irrelevant b. Liquidated damages: ok if (1) actual damages difficult to calc &
b. Past consideration: not consideration (see exception) time K formed; (2) amt = reasonable forecast of damages
c. Pre-existing duty: not consideration (unless owed to 3rd party) B. Duty to Mitigate: non breaching party has duty to mitigate damages
d. Part payment for existing debt: not consideration (unless undue) C. Restitution/Quasi-K relief: value of labor conferred
e. Payment of debt barred by SOL: enforceable w/o consideration D. Specific Performance: ok if legal = insufficient; never for service Ks
f. Consideration substitutes: promissory estoppel; detrim. reliance E. Rescission
E. Defenses to Formation: SOF; mistake; illegality; incapacity; public F. Reformation: may apply in case of mistake
policy; unconscionablity; fraud; duress
III. TERMS OF THE K
A. Interpretation of terms: express terms; course of performance > course
of dealing > custom & usage
B. Mistake & Ambiguous terms: may allow PE to discern
C. Parol Evidence Rule: bars words of parties before integ. of written K
Corporations a. Reqs: 1) contemporaneous stock owner; 2) adequate rep; 3) demand must
I. Organization/Formation: People + Paper + Act be made and rejected or at least 90 days have passed since demand was
A. Pre-Incorp Ks: C not liable until adopts (E/I); P liable until novation made. If successful, recovery goes to corp and indiv is reimbursed
a. P cant make secret profits on dealings w/C AS A P; C price FMV B. Voting Rts: Right to vote only owner on record date
b. Subscribers (written offer to buy pre-corp stock): irrevocable for 6 months a. Mtg: annual (proper notice), special (by bd, pres, 10%SH) vote only on
B. De jure: AOI: Auth shares, Purpose (ultra vires), Agent, Incorporators, Name. proposals or fund. corp changes; notice must contain special purpose
Bylaws: internal governance docs (B/D adopts, not reqd); AOI trump b. Proxies: written, signed by SH, to Cs sec, auth. another to vote; valid for
C. De facto: good faith attempt to comply w/ formalities + no knowledge of lack of 11months; revocable unless states irrevocable AND coupled w/an interest
corporate status (raised as defense to personal liability) c. SH action: quorum: maj. of shares when mtg starts (unless AOI provides
D. C by estoppel:dealing w/bus. as C may prevent denial of C status (Ks, not torts) otherwise), action approved if votes in favor EXCEED votes cast against
E. Legal Significance of C: separate legal person; O/D/S limited liability d. SH Agmt to control voting: Voting trusts: written K delegating pwr to a T,
F. PCV: Alter ego (fail corp. formalities), undercap., prevent fraud copy to C, shares trustee, SH get T certificates (retain all rights but
G. Foreign Cs: must qualify to transact in-state (certif. + fees + AOI) voting), limit 10 y; Pooling Ks: written agmt to vote shares as req in agmt
II. Issuance of Stock: when C sells/trades own stock (binding+enforceable, no time limit); Agmt to elim corp formalities (closely
held corp): unanimous election in AOI, bylaws, or filed agmt and rsnable
A. Consideration: any tangible/intangible prop/benefit (inc. promises)
share transfer restriction, result: no piercing and may elect S-corp status
a. Amt: par (min set); no par (no min, B/D sets); treasury (reacquired; no par)
e. Cumulative voting: shares X # of Ds to be elected, must be in AOI
b. Watered stock: cant issue par stock for < par value (B/D, buyer liable)
C. Dividends: NO rt, Bds discretion unless insolvent, Bd personally liable for
B. Preemptive rights: right of SH to maintain existing % of ownership --> can buy
unlawful distr but have GF defense based on fin officers representations
when new issuance of stock for $. Must be expressly granted in AOI.
a. Payable out of: always earned surplus, never capital
III. Directors & Officers Duties and Liabilities b. Order: preferred (first), common (last, equally), participating-preferred
A. Requirements: Bd has at least 1 member, SH elect D, can remove with/out (twice), cumulative-preferred (first + add from prior unpaid yrs)
cause, vacancies may be filled with other Ds or SHs D. Inspection: only records, books, SH lists (paper), upon notice + proper times
B. Board Action: Mtg req. unless all Ds consent in writing to act w/out a mtg E. Controlling SH: Must refrain from obtaining a special advantage or cause corp
a. Need quorum: maj of Ds (unless diff in bylaws) maj of quorum wins, to take action prejudicing minority SH. Treated as insiders under SEA
NO proxies/voting agr, Ds presumed to concur unless dissent recorded F. PC: licensed profs, designate in AOI, one prof, PL for own mal, but not others
C. Duty to manage: can delegate to committees that recommend action to Bd. G. SH Liabilities: SH not liable for corp obligations. Except: PCV, control SH
D. Directors are fiduciaries that owe corp duties of care and loyalty owes FD to minSH + liable for selling corp to looter, unless rsnble investigation
E. Duty of Care: act in good faith + due care of RPP + best int. of corp.
V. Fundamental Corporate Changes
a. BJR: Presump. that Ds manage the corp in GF and in best int. of corp and
A. Requirements: Bd must adopt at mtg; SH notice of special mtg; SH approval
its SHs. Not liable for innocent mistakes of business jdmt.
by maj of shares entitled to vote (ETV) + each voting grp adversely affected
F. Duty of Loyalty: D may not receive an unfair benefit to the detriment of the
(except short form merger); file notice w/ state.
corp or its SHs, UNLESS material disclosure + indept. ratification
B. Dissenting S rights of appraisal: S forces C to buy back shares at FMV
a. No self-dealing (trxn w/ own corp for her own benefit): unless fair or
a. Req: Before vote, file written notice of obj. and intent to demand payment;
approved by disinterested Ds, remedy: recission
abstain/vote against change; file prompt written demand for buyout
b. Cant usurp C opp for own gain: must 1st tell B/D and let them reject,
C. Mergers/Consolidations: Ds + SHs (by maj.) of both Cs must approve
competing in unrelated business ok, remedies: dmgs, CT, corp gets opp
a. Short-form merger: 90%+ owned subsidiary parent C (no SH app. reqd)
c. Ratification: maj. of indept Ds, cmmty of at least 2 indpt Ds, or shares
D. Amendment of AOI: Corp can amend. No appraisal rts. Bd may amend/repeal
G. Officers (req: pres, sec., treas.): owe same duties as Ds; hired/fired by B/D,
bylaws unless AOI exclusively reserve pwr to SHs
agents of corp bind corp with auth activities
E. Sale of Assets: If sale, lease or exch. of substantially all of corp assets is outside
H. Indemnification: If D/O incurs costs for jdmt/settlement for corp business
of ordinary course of business, then maj. of Ds and maj of shares ETV must
a. No indem: if D held liable to own C; Mandatory indem: if D wins suit v.
approve. De facto merger: may trigger possible recisssion or appraisal rts;
any party; Permissive indem: liable to 3rd party, settlement (GF+corps
purchasing corp may be liable for debts and liabilities
best int., granted by: maj of ID, cmty of ID, shares, special attys opin.
F. Dissolution + Liquidation: Maj of Ds and maj of shares ETV must approve (no
IV. Shareholders quorum concept). If liquidation, pay outside creditors first.
A. Shareholder Derivative Suits: SH sues to enforce Cs COA
a. Involuntary (by ct order): S can petition b/c of D abuse/waste; harmful C. As liability: for unauthorized Ks; undisclosed principals (P+A liability)
deadlock; S deadlock/2 yr failure to fill vacant D position III. Duties Agent owes to Principal
VI. Securities & Related Topics A. Reasonable care; Obedience; Loyalty (cant self-deal; usurp opp; secret $$)
A. CL duty: owed existing SHs and generally required privity as compared to B. Remedies: P recovers loss caused by breach and may disgorge profits
transactions carried out on stock exchanges - Partnerships
a. Tort of fraud or misrepresentation I. Formation
b. Majority or CSH under a FD to exercise control for benefit of all SH, A. General partnership: assoc. of 2+ people who carry on as co-owners of a
including duty of care and loyalty, full disclosure, and to act in GF business FOR PROFIT; no formalities reqd (inferred from conduct i.e.
c. Fact patterns: SH who illegally sells corporate assets for their own benefit services for profits); key = sharing of profits
(remedy: disgorge profit); SH sale to corporate looter (liable unless II. Liabilities of Partners to 3rd Parties
reasonable invest); officers selling their office/job/position for private gain;
A. Agency principles apply: Ps = agents of GP
CSH subjecting minority.
B. GPs personally liable for debts/obligations of GP (even co-P torts+auth Ks) P
B. Rule 10b-5: P must show fraudulent conduct (materiality + scienter +
can get contribution/indemnification if paid more than fair share
misrep/failure to disclose that breach FD) in connection w/purchase/sale of
a. Incoming Ps: not liable for prior debts; Dissociating Ps: liable for future
security by P + use of ISC + reliance by P + damages
debts until notice to creditors or 90 days after filing disassoc w/state
a. Insider trading: Elements: person must be insider, bought or sold stock via
C. Liability by estoppels: rep to 3rd party that GP exists liable as if it does!
ISC, based on nonpublic info
D. Lim. P.: 1+ GP; 1+ LP; file LP certificate w/names of all GPs by at least two Ps
b. Tipper liability: insider, improper purpose, receive personal gain
a. GPs: personally liable + right to manage/control; LPs: not liable, no
c. Tippee liability: tipper breached, tippee knew tipper was breaching, tippee
control (though ULPA allows mgmt w/o forfeiting LL)
bought or sold stock via ISC.
E. Registered LLP: file state. of qual.+annual report RLLP (no liability for
d. Misapprop.: govt vs. any trader who: misapprop. info from any source in
RLLP obligations or other Ps torts; but still liable for own conduct)
breach of a duty of trust and confidence owed to the source of the info.
F. LLC: limited liability + limited liquidity + limited life + limited TAX
C. 16(b): C can recover profits from insider short-swing trading (SL)
a. Formation: file art. of org + operating agmt; member control or delegate
a. Def: O/D, or 10% SH; Reporting C: on natl exch or 500 SHs + $10M
b. Hybrid: owners (members) have same LL of SH in corp and PS tax
b. Any profit realized by Def from any purchase and sale (or S&P), within a
period of less than 6 months must be returned to corp. III. Rights & Liabilities Between Partners
D. Sarbanes-Oxley: no knowingly false filings and no benefits during falsehoods A. GPs = fiduciaries: owe DOL; violation action for accounting/recovery
or blackout periods. B. Rights in GP property: CANT transfer GP assets w/o GP authority or mgmt
AGENCY shares; BUT shares/profits = freely transferable; Ask: whos $$ purchased?
I. Respondeat Superior & Vicarious Liability (P liability for As torts) C. Default rules of operation: equal control (1 partner, 1 vote; ordinary/maj,
fund/unanimous); no salary (except wind-up comp); profits shared equally;
A. P = liable if: (1) P/A relationship; (2) tort committed w/in scope of rel.
losses shared like profits
a. P/A relationship: assent/agree + for Ps benefit + right to control (ABC)
b. Sub-A: no VL unless ABC over sub (no assent); Borrowed A: no VL IV. Dissolution
unless ABC (no control) A. Partnerships at will: automatically on express will of ANY P to disassociate
c. No VL for I/C torts: unless ultra-hazard; estoppel B. Partnerships not at will: upon happening of event specified in agreement, or
d. Scope: w/in job descript; detour (not frolic); intent to benefit P majority vote to dissociate w/in 90 days of 1 partners disassociation
B. Intentional Torts: NO VL unless Motivated to serve P; Auth; Nature of emp C. Termination: real end of partnership
II. Liability of Principal for Ks Entered by Agents D. Winding up: period btw dissol. & term. (Ps liquidate assets creditors)
a. Ps compensated for winding up
A. P is liable only on its authorized Ks
b. Old business: GP & Ps retain liability (i.e. w/existing creditors)
B. Types of authority: actual express, actual implied, apparent, ratification
c. New business: liable until notice given to Cs or 90 days after filed w/state
a. Actual express: can be oral; equal dignities applies; revoked by unilateral
E. Priority of Distribution: (1) creditors; (2) capital contributions by partners; (3)
act of either party OR death/incapacity of P UNLESS durable power of atty.
profits & surplus Rule: Ps get loans & cap. contributions PLUS share of profits
b. Actual implied: A reasonably believes b/c necessity (to complete task);
but also MINUS share of loses
custom (implied by position); prior dealings btw P&A
c. Apparent: P cloaked a w/appearance of auth; 3rd party reasonably relied
d. Ratification: P has knowledge of material K facts and accepts its benefits
Criminal Procedure C. Duty to disclose: Pros. must disclose exculpatory evidence to D (or DP viol.)
I. Exclusionary Rule: product of illegal search/seizure may be excluded D. Notice of alibi or insanity: D must give notice if intends to use either defense
E. Incompetency to stand trial: BAR to trial; can be tried If later regains comp.
A. Doesnt apply to: grand juries; civil proceedings; no violation of law or fed
statute; parole revocation proceedings; impeachment of Ds trial testim. VI. Right to a Fair Trial
B. Good faith defenses: POs good faith reliance on case law later changed; A. Unbiased judge: no financial interest in outcome or malice against D
statute/ ordinance later decl. unconstitutional; defective search warrant B. Right to jury trial: if max sentence > 6 months (crim contempt: sum > 6 mo.)
a. Except if: warrant = invalid on face; PO lied to obtain warrant; affidavit a. Min 6 jurors (must be unan.); 12 = norm (10-2/9-3 verdicts ok); jury pool =
underlying warrant unreas. lacks PC; magistrate abandoned judicial role fair cross section of comm.; no race/gender peremptory challenges
C. Fruits of Poisonous tree: cant admit evid derived from POs unlawful action C. Ineffective assistance of counsel: D must show deficient performance + but for
a. Except: independent source; inevitable disc; intervening D free will deficiency, would have had different result (rare; look for non-guilty D)
II. 4th Amendment: No Unreasonable Searches & Seizures D. BOP: DPC requires the state to prove guilt beyond a reasonable doubt
A. Rqts to invoke 4th A protection: govt conduct + reasonable expectation of VII. Guilty Pleas & Plea Bargaining
privacy (standing); NO privacy right in items held out to public (voice, trash, A. Guilty Plea: knowing + voluntary; waives right to a jury trial (treated like K)
etc) B. Taking the plea: D advised of nature of charge, crucial elements, max penalty
B. Arrests: public NO warrant; non-emergency @ home warrant; station- & mandatory min; right not to plead guilty; that plea waives right to a trial
house detentions: PC to arrest reqd for fingerprinting/interrogation C. Post-sentence WD ONLY ok if: involuntary plea, lack of jx, ineffective
C. Warrant reqts: PC + precise on face + issued by neutral, detached magistrate assistance of counsel, pros. fails to keep agreed upon plea bargain
a. PC: common sense under TOC; informants can be partial basis (even anon) VIII. Death Penalty
D. Exceptions to warrant requirement: A. Statutory reqts: must give D opp to present ALL mitigating facts & circ; no
a. Incident to lawful arrest: cotemp w/arrest; limited to person + wing-span automatic categ. for imposition of DP; only jury may det. aggravating factors
b. Auto: if PC, entire car + anything that might contain item (sep PC rqd for
IX. Double Jeopardy
D)
c. Plain view: anything PO sees where legitimately present A. Standard (5th A): cant be retried for same offense once jeopardy has attached
d. Consent: voluntary + intelligent (+ authority); negated if PO claim warrant a. When attaches: jury trial when jury sworn; judge trial 1st W sworn
e. Stop & frisk: RS reqd, pat-down; disc. weapons/contraband ok b. NOT same offense: if each reqs proof of addl elem not reqd by other
f. Hot pursuit: can enter anyones home w/o warrant while in hot pursuit c. Lesser included offenses: BARRED by jeopardy for greater (& vice
g. Evanescent evid: might disappear if PO took time to get warrant versa); except battery Vs retrying for murder after died
h. Admin inspections/searches: airline, inventory searches of arrestees, etc. B. Exceptions permitting retrial: jury cant agree on verdict; mistrial for manifest
i. Border searches: no 4th A rights at the border necessity (ill D); after successful appeal; failure of D to keep plea bargain (can
E. Wiretapping & eavesdropping: ALWAYS req warrant (but risk unreliable WD plea/sentence & reinstate original charges)
ear) C. Separate sovereigns: ok to try crime in sep sov (i.e. fed & state ct; 2 state cts)
III. 6th A Right to Counsel & Pre-Trial IDs X. Privilege against Compelled Self-Incrimination
A. Rule: D has right to assistance at all critical stages (post charge) in crim cases A. ANYBODY may assert (D,V, W) in ANY kind of case (civ, crim); must assert
a. Offense specific: ok to Q re unrelated, uncharged offenses first time Q asked or else WAIVED in all subs. prosecutions (even if diff. type)
B. Pretrial IDs: right to counsel if post-charge IDs (except photo IDs) B. How invoked: D may refuse to take stand; other Ws must specifically invoke
a. DP violation: if unnecessarily suggestive or subst. likelihood of mis-ID ( C. Scope: protects against compelled testim, forced-lie detectors, custodial interr.
ID excluded, but evidence of independent identification will rebut) D. NO burdens on assertion of priv: i.e. cant comment on Ds failure to testify
E. Means of elimination: use immunity grant; no possibility of incrim; waiver
IV. 5th A Privilege against Self-Incrimination
XI. Juvenile Court Proceedings
A. Miranda warnings: right to remain silent, to atty, to terminate Qs at any time
a. When reqd: custody + interrogation (unless waiver); NOT offense specific A. Required rights: written notice of charges; assistance of counsel; opp to
b. Pub safety exception: Qs w/o warning ok if reas. concern for pub safety confront/cross Ws; right not to testify; guilt must be estab beyond reas. doubt
B. 5th A right to counsel: once asserted, may not reinitiate w/o atty present B. Pretrial DT ok if serious risk to society; no jury right for delinquency proceed.
V. Pretrial Procedures
A. Bail: bail issues = immediately appealable; no preventative detentions
B. Grand Juries: not reqd; secret proceedings; exclusion doesnt apply
Criminal Law E. False Imprisonment: unlawful confinement w/o Vs valid consent
I. Jurisdiction & Merger F. Kidnapping: unlawful confinement inv. moving or concealing in secret place
G. Rape: carnal knowledge of W by non-H w/o consent; statutory: <age W, SL
A. Jurisdiction: state of legal situs; omission: where should have been performed
H. Larceny: take/carry away prop of another w/o consent + intent to perm dep; SI
B. Merger: solicitation & attempt merge into substantive offence if completed
I. Larceny by trick: V consents to taking, but due to Ds misrepresentation
II. Essential Elements J. Embezzlement: fraudulent conv. of prop of another by person in lawful poss.
A. Act (volitional bodily movement) or Omission (failure to act when reqd) K. False pretenses: obtaining title to others prop by false stmt + intent to defraud
B. Mens Rea (mental state) L. Robbery: larceny + assault (use of force/threat of imminent harm)
a. Specific intent: req specific intent/objective (CL: solicitation; attempt; 1st M. Extortion: threat of future harm to compel act/payment (blackmail)
deg M; assault*; larceny; false pretenses; robbery; burglary; forgery) N. Receipt of Stolen Prop: D knows goods stolen + has intent to perm deprive
b. Malice: reckless disregard of high risk of harm (CL: murder & arson); O. Forgery: falsifying legally sig writing + intent to defraud
transferred intent for homicide; battery; arson P. Malicious Mischief: malicious destruction/damage to anothers property
c. General intent: awareness of all factors constituting crime Q. Burglary: breaking/entering dwelling at night + intent to commit felonly therein
d. SL: no intent crimes (statutory rape; traffic viol.) R. Arson: malicious burning (at least charring) of dwelling of another
III. Inchoate Offenses
A. Solicitation: asking someone to commit a crime (if they agree, conspiracy)
B. Conspiracy: agreement + intent to agree + intent to pursue unlawful obj. (maj:
also reqs overt act); no merger; cant WD (except for co-c subsequent crimes)
a. Co-c liability: for all foreseeable crimes committed in furtherance of
consp.
C. Attempt: specific intent + substantial step (beyond mere prep) crime comm..
D. Accomplice Liability: for crime itself + all foreseeable crimes; active inv. req;d
IV. Defenses
A. Insanity (Mental Illness Does Matter): defense to ALL crimes (inc. SL)
a. MNaghten: lack ability to understand nature/qual or know wrongfulness
b. Irresistible impulse: lacked capacity for self-control and free choice
c. Durham (product): conduct was product of Ds mental illness
d. MPC: lack ability to know wrongfulness or conform conduct to reqts of law
B. Intoxication: voluntary SI crimes; involuntary: ALL crimes (inc. SL)
C. Infancy: < 7 no liability; < 14 rebuttable presump of no liability
D. Self-Defense: must be reasonable & proportional to prevent perceived attack
a. Deadly: maj: ok if believes about to be used upon D; min: retreat if safe
E. Duress: defense to ALL crimes except homicide
F. Consent (only for crimes req. lack, i.e. rape): freely given + V capable of
consent
G. Entrapment: crime originated w/PO + D not predisposed to commit crime
H. Mistake of Fact: SI ANY mistake; Malice/GI reas. mistake; SL
NEVER
I. Mistake of Law: NO defense, unless b/c reas. reliance on statute or off. advice
V. Common Law Crimes
A. Battery: completed assault (GI); Assault: attempted battery (SI) or threat (GI)
B. Murder (4 types): intent to kill; intent to do serious bodily harm; FM (BARRK
felony); depraved heart murder (intentional act subs. likelihood of death)
a. FM defenses: to underlying fel; unforeseeable; death to co-F; post flight
C. Voluntary manslaughter: killings from passion/provoked (NO cooling off)
D. Involuntary manslaughter: from crim negligence or misd. manslaughter
Criminal Law/Criminal Procedure Essay Checklist
CRIMINAL PROCEDURE
I. 4th Amendment
A. Arrest
a. Standards: felony, misdemeanor
b. Detentions
B. Search & Seizure
a. Govt conduct?
b. Reasonable expectation of privacy?
c. Search w/ or w/o warrant?
i. With warrant: PC, scope of warrant, neutral/detached magistrate, proper execution, good faith
ii. Without warrant: incident to lawful arrest; auto; plain view; consent; stop & frisk; exigent circ.
d. Persons/places searched: public schools; probationer; border searches; wiretapping; body searches
e. Exclusionary rule limitations: harmless/reversible error; fruit of poisonous tree; inevitable discovery;
independent source; admissible to impeach
II. 5th Amendment
A. Incriminating Statements
a. Privilege against self-incrim protects compelled, testimonial evidence
b. Miranda: custodial interrogation; warning reqd; waiver; knowing & voluntary
B. Double Jeopardy
a. Attaches in jury or bench trial
b. Exceptions: hung jury; mistrial; retrial on successful appeal; failure of D to keep plea bargain
c. Same offense or lesser included, unless new evidence
d. Does not apply to separate sovereigns
th
III. 6 Amendment
A. Right to counsel: post charge lineups/showups (but not photos); critical stages of prosecution
a. Waiver & right to defend oneself
b. Ineffective assistance of counsel: but for deficient performance, different result
B. Right to speedy trial: totality of circumstances; attaches once D is arrested or charged
C. Right to jury trial: offenses > 6 mos; number/selection of jurors; death penalty reqts; waived by guilty plea
D. Right to confront witnesses: opp to cross (not absolute disruptive D; co-Ds confession)
IV. 8th Amendment
A. Cruel & unusual punishment
a. Punishment must be proportionate to offense
b. Death penalty: doesnt inherently violate 8th A; jury must be allowed to consider mitigating
circumstances; can be imposed for FM (reckless indifference); jury can consider impact on Vs fam
i. Cannot be imposed on minors or mentally retarded
V. 14th Amendment (applies to actions of states)
A. Due Process
a. BOP on prosecution to prove each element of crime
b. No unnecessarily suggestive IDs
CRIMINAL LAW
I. Central Principles: actus reus; mens rea; concurrence; causation
II. Accomplice Liability
A. Elements: must be aiding, abetting and counseling crime (active aiding reqd; mere presence enough)
B. Liability: for crime itself and all other foreseeable crimes
C. Defenses:
a. Withdrawal: if encouraged only, repudiate encouragement; if provided material, must do all possible to
retrieve; notify authorities/preventive acts; must be before chain of events crime = unstoppable
b. Accessory after fact: helping someone escape (1) not liable for crime itself; (2) separate, lesser charge
III. Inchoate Ofenses: Solicitation, Conspiracy, Attempt
A. Solicitation: asking someone to commit crime; merges into crime if committed (refusal of solicitee = no defense)
B. Conspiracy: agreement, intent to agree, intent to achieve unlawful purpose or objective of agreement
a. Liability: for all foreseeable crimes of other conspirators in furtherance of conspiracy
b. Defenses: can only withdraw from future crimes (not from conspiracy); NO impossibility defense
c. No merger: can be convicted of conspiracy to rob and robbery
C. Attempt: specific intent + substantial step in direction of commission of the crime (mere preparation enough)
a. Defenses: legal impossibility (maj. rule); NOT factual impossibility; NO abandonment after subst. step
IV. Common Law Crimes
A. Crimes against Person
a. Homicide
i. Murder: malice aforethought (intent to kill; intent to commit serious bodily injury; wanton/
reckless conduct (depraved heart); FM)
ii. Voluntary manslaughter: murder from passion/provocation
iii. Involuntary manslaughter: negligent killing; misdemeanor manslaughter
b. Assault & Battery
c. Rape
d. Kidnapping
e. Mayhem (?)
B. Crimes against Personal Property
a. Larceny (& Larceny by Trick)
b. Embezzlement
c. False Pretenses
d. Receiving Stolen Property
C. Crimes against Person & Personal Property: Robbery; Extortion
D. Crimes against Real Property: Arson; Burglary
E. Crimes against Public: Forgery; Misprison (compounding a felony); Bigamy
V. Defenses
A. Self-Defense
B. Defense of others
C. Defense of property
D. Insanity: MNaughten; Irresistible impulse; Durham Rule; MPC
E. Intoxication: voluntary; involuntary
F. Entrapment
G. Mistake
H. Age/Infancy
I. Necessity
J. Duress
K. Crime Prevention
Evidence Checklist a. PIS: ok to impeach (TOMA if under oath); extrinsic only if W op to
I. Relevance ex/deny
b. Bias/motive: show why W testifying certain way (on cross, extrinsic ok)
A. Logical Relevance: tendency to make a fact of consequence more/less prob. c. Convictions: ok if inv. dishonesty (fel/mis), or felony (w/403, but 10yr rule)
B. Legal Relevance: prob value must NOT be outweighed by prej. effect d. Prior bad acts: ok on cross; no extrinsic evid (must ask in good faith)
C. Relevant evidence excluded for Policy Reasons V. Hearsay: out of court statements offered for TOMA
a. Subsequent repairs: BARRED for liability (ok for ownership, control)
b. Settlement offers/pleas: BARRED to prove fault (civil) or guilt (crim) A. Not hearsay if offered to show: indep. legal sig; defamation; effect on
c. Payment of med expenses: BARRED for liability (FRE: accomp. words listener; speakers knowledge of facts stated; circ. evid of state of mind
ok) B. Exemptions to HS Rule: admission by P/O (inc. vicarious; adopted; co-
d. Liability insurance: BARRED for liability/ability to pay (ok for all else) conspirator); PIS under oath; PCS to rebut charge of recent fab/motive; ID
D. Similar Occurrences: generally inadmissible, but maybe ok to show C. HS Exceptions: UNAVAILABILITY REQUIRED
causation, intent, rebut impossibility, preexisting condition, pattern of a. Former testim: ok if under oath + motive/opp to cross (+ civil reqs privity)
fraudulent claims, value (i.e. comparable sale), industrial custom b. S against interest: financial or criminal interest (if to exculpate, corrob. rq)
a. Habit: admissible (specific, routine, makes no moral judgment) c. Dying Dec (civil/homicide cases): about to die re: circumstancesdeath
d. Personal/fam history: (i.e. death/birth/marriage), made by family member
II. Character Evidence
e. Statement against party procuring Ws unavailability
A. Methods: reputation (community), opinion, specific acts D. HS Exceptions: AVAILABILITY IMMATERIAL
B. Civil Cases: admissible only if at issue (defamation, child-cust); any type ok a. Excited utterance: made while under stress of startling event (no time bar)
C. Criminal Cases: door closed, D holds the key b. Present sense impression: made concurrently w/perception of event
a. Ds character: if relevant, D can offer 1st (rep/op), P can rebut (SI on c. Physical/mental cond: to show state of mind, emotion, condition, later act
cross); if D challenges Vs character, P can show evid for same trait d. Med condition: if made to doc for purposes of diagnosis/treatment
b. Vs character: if relevant, D can offer (rep/op); P can rebut (SI on cross); e. Business records (/absence): reg course of business + PK + duty to
in homicide case P can show Vs peaceful character if D args self-defense transmit
c. P can offer 1st if: sex assault/child molestation; Ds same trait (see above) f. Recorded rec: writing by W who now cant remember while fresh in mind
d. Rape: rep/op inadmissible; SI to prove alt D, prior consensual sex btw g. Learned treatises: ok if authorized in field, used by EW
V&D h. Public records (/absence); Ancient docs (20+yrs); Family records;
D. MIMIC: specific instances of Ds bad conduct OK to prove MIMIC (if Market records; Judgments (prior fel); Docs affecting prop interests
403) E. CC limitation: no testimonial HS against crim D unless opp to cross
III. Testimonial Evidence VI. Writings
A. Competency rqts: PK, present recollection, communication, sincerity A. Authentication: required for all non-testimonial evid
B. Objections (must be timely + specific): calls for narrative; unresponsive; no a. Signatures: by admission, eyeW, E/lay W, exemplar, circumstantial evid
leading on direct (but ok on cross if w/in scope of direct); assumes facts not in b. Self-authenticating: certified pub docs; notarized docs; official pubs;
evidence; argumentative; compound newspapers/mags; bus. records; trade inscriptions (i.e. tags, labels)
C. Refreshing recollection: can use anything (+ show opp) c. Photos: ok if W has personal knowledge of scene (must accurately depict)
D. Opinion Testimony: generally inadmissible, except d. non-unique items: must estab chain of custody
a. Lay opinions: RB on Ws obs + helpful to jury (i.e. speed, sanity, intox, B. BER: original reqd when evid offered to prove contents of writing
etc.) a. Admissible forms: originals; duplicates (not HW); testim (if
b. Expert Ws: ok if helpful to jury; qualified; reas. degree of certainty; proper lost/destroyed)
factual basis; proper/reliable theoretical principles VII. Privileges
IV. W Credibility & Impeachment A. Attorney/Client: confidential comm btw A/C (or reps) facilitate rep
A. Evid supporting credibility: inadmissible unless 1st attacked B. Dr/Patient: for diagnosis/treatment (exept: crim case, med-mal, at issue)
B. Reputation/opinion for truthfulness: admissible, extrinsic OK C. Spousal testimonial: can refuse to testify in crim cases (testifying S holds)
C. Impeachment: no extrinsic evid to impeach on collateral matters D. HW confid comm: protects confidential spousal comm. during marriage
VIII. Judicial Notice: establishes facts w/o taking evidence
A. Facts appropriate for JN: generally known, capable of ready/acc determin.
B. Procedure: request; civil must accept as conclusive; crim may accept
Evidence Essay Big Picture Qs
(Real Reindeer Enjoy Camping In Park Headquarters)

1. Is the evidence RELEVANT?


a. Logical relevance
b. Legal relevance
2. Is the evidence RELIABLE?
a. Is it authenticated or based on personal knowledge?
b. Does the BER apply?
c. Is it an admissible lay or expert opinion?
3. Is the evidence barred by EXTRINSIC POLICIES?
4. Is it admissible to show CHARACTER?
a. Civ/crim requirements; MIMIC
5. Is the evidence admissible to IMPEACH?
6. Is the evidence barred by PRIVILEGES?
7. Is the evidence HEARSAY?
a. If so, does a HS exemption or exception apply?
Contracts Checklist B. Lack of Capacity: < 18; mental incomp; intoxicated (if other party knows)
I. Vocab & Applicable Law a. Remedy: disaffirm (incap. party); implied affirmation; quasi-K
(necessaries)
A. Contract: legally enforceable agreement
C. SOF: applies to promises in consid of marriage; estate reps offer to pay debt
a. Bilateral: results from offer open as to method of acceptance
personally; guarantees (answer debts of another); long-term service Ks (>1
b. Unilateral: expressly requires performance for acceptance (i.e. reward)
year); real-estate transfers; sales of goods > $500 (must statequant)
B. Quasi-K: equitable remedy to prevent unjust enrichment (applies when benefit
a. How satisfied: writing (material terms); signed by party to be charged
conferred + expectation of payment + other party unjustly enriched)
i. Service Ks: writing or full performance
C. CL: services, emp, real-estate; UCC Article II: sale of goods Ks
ii. Goods Ks: part perf satisfies (extent of perf.); subst. begin for spec.
II. Formation : Offer K
A. Rule: manifestation of commitment; need not contain all material terms iii. Real estate: 2/3 of - full/part payment; possession; improvement
a. Real estate: price + land description; Goods: missing price = ok (need amt) b. UCC exception: if 2 mchts; one receives signed writing + quant term
b. No vague/ambiguous material terms (i.e. fair/reas. price no offer) claiming K; must reply w/in 10 days or no SOF defense
c. Output/rqt Ks: K amt per buyers rqts, Ss output, or exclusivity (no disp.) c. Equal dignity rule: if K w/in SOF; authorization to enter must be written
d. Ads NOT offers unless: rewards, specific quant + who can accept d. Modifications: if original + w/in SOF; must be in writing
B. Termination: kills offer (cant accept DEAD offer); 4 means D. Illegality: illeg. SM unenforceable; illeg. purp. enf. by P who didnt know
a. Lapse of time: time stated or reasonable time (i.e. > 1 month) E. Public Policy: ct can refuse to enforce (exculp Ks; unreas. cov not to compete)
b. Revocation: words/conduct of offeror (offeree must know); not revoc. If: F. Fraud/Misrepresentation: may cancellation/rescission of K
i. Option K: promise not to revoke + payment for promise G. Duress: physical/economic; improper threat + D w/no reasonable alternative
ii. Firm offer (<3 mo.): goods K + merchant S + written prom. to lv open H. Unconscionability: procedural (unfair surprise) or substantive (oppressive
iii. Detrimental reliance: by offerree that is reasonably foreseeable terms); applied at time K entered; can all or part unenforceable
iv. Start of performance: if unilateral K (> mere preparation) I. Misunderstanding: no K if material term subj. to 2 reas. interps + parties
c. Rejection: express or indirect (counter-offer; conditional acceptance) attached diff meanings + neither knows of others meaning
i. Mirror image rule (CL): acceptance adding new terms = counter-offer J. Mistake of fact: no K if both mistaken + basic assump of fact + materially
ii. UCC: response + new terms K (if 2 merchants addl term inc. affects K + neither party bears risk (value = never basis for mistake)
unless obj. or materially s K; if 1 = nonM then addl term = sep. a. Unilateral: only void K if palpable, or disc. before reliance by other
proposal) V. Terms of the Contract
d. Death/incapacity of either party: except options; part-perf of unilat K
A. PER: final integ. written K controls; prior/contemp statements = inadmissible
III. Formation: Acceptance a. Exceptions: mistake in integration; prove defense to enforcement (i.e.
A. Who can: person who knows of & receives offer (non-assignable, unless opt. K) fraud); explain terms of the K; adding terms if only partial integration
B. Methods: full performance (notice reqd if distant O); start of performance; B. Conduct: course of performance > course of dealings > custom & usage
promise to perform; unilat Ks: require completed performance (implied by acc.) C. UCC default terms for sale of goods Ks
C. Mailbox rule (K by mail): comm. dont count till arrive; acceptances effective a. Delivery obligation: default = Ss place of business; if using common
when sent; if rejection sent 1st, nothing counts till arrives (even accept.) carrier shipment K: get goods to carrier, make reas. arrangements for
D. Wrong goods sent: acceptance + breach (unless accommodation provided) deliv, notify B; delivery K: liable until goods reach B (FOB = final dest.)
IV. Defenses to Formation b. Risk of loss: determ. by (1) agreement; (2) who breached; (3) delivery by
A. Consideration: bargained for legal detriment (person & promise specific) comm. carrier ( B once Ss oblig. fulfilled); (4) if no ag/breach/CC; then
a. Forms: performance; forbearance; promise to perform/forbear; no illusory B upon receipt if mcht seller, or B upon tender if non-mcht seller
promises (i.e. unless I mind); adequacy = irrelevant c. Express W: if S promises/describes/states facts or shows model to B
b. Past consideration: NOT consideration (unless express req + expect. of $$) d. IW of merchantability (if S = mcht): ord purpose for which goods used
c. Preexisting duty: NOT consideration (unless promise is to 3rd party, $$ for e. IW of fitness for particular purpose: partic purp + reliance + S knows
addition/ in perf.; or perf. otherwise excused) f. K limitations on warranty liability: can only disclaim implied warranties
i. K Modifications: CL new consid reqd; UCC good faith (i.e. as is); can limit remedies for breach if not unconscionable
d. Forgiving debt: consideration if debt = due and undisputed VI. Performance
e. Consid substitutes: written prom to satisfy existing obl. barred by SOL A. CL: Governed by terms of K
(moral consid); detrimental reliance (enforcement nec. to avoid inj.)
B. UCC: perfect tender reqd by S (if not, B can reject some or all); if < perfect T, b. Accord & Satisfaction: new K (accord) extinguishes old upon performance
B can retain + sue for dmgs; reject all/part + sue for dmgs, unless: of new K (satisfaction), i.e. payment in full
a. Cure: if S had reasonable grounds IT would be ok; or still time to perform c. Modification: agmt by both parties that new K will satisfy old oblig.
b. Installment K: rqs/authorizes deliv in separate lots w/sep. accept. (can d. Novation: agmt by both parties to subst new party into K (rep old P)
reject installment only if substantial impairment) F. Excuse b/c later, unforeseen event:
c. Acceptance: unless no opp for inspection; implied after certain time a. Impossibility (obj.): phys incapacity, illegality, destruction of SM imp.
d. Revocation of acceptance: only if subst. impairment + excusable b. Impracticability (subj.): extreme/unreasonable difficulty
ignorance /reliance on Ss assurances + w/in reas. time of discovering c. Frustration of purpose: unforeseen occ. eliminates purpose of perf.
nonconformity d. Destruction of SM: if Ss risk, must perform if can; if Bs risk, must still
VII. Remedies for Unexcused Nonperformance pay
A. Nonmonetary remedies: e. Subs law/reg: if illegal perf, impossibility; if illegal purp, frustration
a. Specific perf: $$ wont suffice (i.e. real estate, unique goods); not for svcs IX. Third-Party Beneficiaries
b. Reclamation: if insolvent B + dmd w/in 10 days of rec. + B still has goods A. Rule: if parties K to benefit TP, TP can sue for breach if unperformed
c. Entrustment: i.e. jeweler sells Ps watch instead of fixing it; if 3rd party B. Cancellation/modification: need TP consent if rts have vested (knows + relies)
buys w/o notice NO K REMEDY (tho maybe under conversion) C. Who can sue? TPB promisor; promisee promisor (unless TPB did
B. Money damages for breach of K: goal = compensate P already); creditor TBP promisee on pre-existing debts (incidental TPBs dont
a. Expectation (default): put P in same position as if K performed recover)
b. Reliance: put P in same position as if K never happened D. Defenses: promisor can assert SAME defenses against TPB as promisee
c. Restitution: put D in position as if K never happened, give Ds profits to P X. Assignments & Delegations
C. Damage rules for sales of goods: how to calc expectation damages A. Assignment: K btw 2 parties + 1 party transfers rights to TP (who can enforce
a. S breach, B keeps: FMV if perfect FMV as delivered K)
b. S breach, S keeps: FMV when breach disc. K price; or rep. price K a. Limitations: can be provided in K; valid unless invalidated (not just
price prohibited); CL: no assignments that materially duties of obligor
c. B breach, B keeps: K price b. No consideration reqd: but if assmt given for value, assignor warrants
d. B breach, S keeps: K price FMV @ deliv; or K price resale price; if that assigned right exists and assignor wont impair it
lost volume seller (reg inventory + B breach + resale) dmgs = lost profits c. Rights of parties: assignee O (has same defenses as against assignor);
D. Additions/Limitations: all damages must be proven w/reasonable certainty! payment by O assignor ok till O knows of assignment
a. Incidental dmgs: ALWAYS recoverable (i.e. cost of finding replacement) d. Modifications btw O & assignor: ok if O doesnt know of assignment
b. Consequential dmgs (from special circ.): if foreseeable to D at time of K e. Multiple assignments: if gratuitous, last in time wins (freely revocable,
c. Avoidable dmgs: NO recovery if could avoid w/o UB on P (Ds BOP) unless delivered writing, indicia of ownership, det reliance); if for
E. Liquidated Damages: ok if dmgs difficult to forecast + forecast = reasonable consideration, 1st in time wins (unless no notice + indicia of ownership)
VIII. Excuses of Nonperformance (something happened after K made) B. Delegation: party transfers K duties to TP
A. Other partys improper perf (CL): dmgs for any breach, but only material a. Valid unless: K prohibits delegations OR assmts; K calls for very special
breach excuses perf (not material if subst. perf; if divisible K, applies per perf.) skills; person to perform has special reputation
B. Nonoccurrence of a condition: basis for excuse; can be precedent or subseq.; if b. If TP fails to perform: can sue delegator (always liable) or TP if recd
express, strict compliance reqd (difft from conditional accept counter offer) consid
a. How excused: statement of release/waiver by benefiting party; estoppel
C. Anticipatory repudiation: unambig statement OR conduct indicating non-
performance prior to time performance due
a. P can: await perf; immed sue for breach; suspend own performance
b. Retraction of AR: ok if no material in position by OP (+ maybe assur.)
D. Insecurity: if ambiguous statement sugg. nonperf; P can stop perf if reas.
grounds for insecurity + no adeq. assurances + commercially reasonable
E. Excuse because of modification or later K:
a. Rescission: cancels K (ONLY if performance not complete)
PR Checklist Clients Love Fierce Counsel; Courts Feel Differently d. New Cs on matters related to former Cs: cant use non-public,
I. Duty of Confidentiality to Client confidential info against former C (note: imputed DQ may apply to former
firm)
A. Rule: An atty cant reveal anything related to Cs rep w/o her consent e. Former Judges/Govt lawyers: if worked personally & subst. on a
a. Broader than A/C priv (all comm., indefinite); source of info = irrelevant;
matter, cant work on same matter in priv. practice (unless consent;
b. disclaimers: must be in sufficiently plan terms; duty can attach before rep
ethical wall)
B. Exceptions: consent (implied if necessary to render services); client used D. Conflicts b/c TP Interference: SOLE duty = to C; not 3rd party
or is using srvcs to commit crime/ fraud and disclosure would a. Comp from 3rd party: ok w/Cs informed consent, wont interfere w/Ls
mitigate/prevent (not CA); may reveal whats necessary to prevent act if indep. judgment, no infringement on DOC (CA: written consent reqd)
atty reasonably believes disclosure necessary to prevent a persons b. Org clients: act in best interest of entity (can rep org + Ds/Os/Ss if no conf)
reasonably certain death/SBH (does not require, must first persuade and c. Securities lawyers: if viol; report up to CEO/CLC; may report out
inform C of intent to reveal); defending self; court order; legal ethics (ABA)
advice (not CA); Sarbanes-Oxley Act lawyers who reveal info to SEC III. Fiduciary Duties to Client
under SOA cannot be held liable or disciplined under inconsistent state A. Attorney Fees: must be reasonable (eval knowledge, exper, time, diff., etc.)
rule. a. Fee K: in writing (how calc; svcs/duties covered); unless <$1k, reg C,
II. Duty of Loyalty to Client (conflicts of interest) potential/actual emerg
A. Rule: DOL to avoid conflicts of interest w/self, C or 3rd party that would b. Contingency fee K: signed by C + list L%; expenses deducted (& bef or
aft); barred in crim/dom rel cases (CA: % negotiable); NO recov w/o
materially limit or be adverse to loyal representation
judgment
a. Procedure: ok if reas. believe you can rep everyone effectively; + notice +
c. Fee splitting w/Ls: ok w/in firm (outside ok if ethical + written consent)
written consent
d. w/non-Ls: NOT allowed (except death bens to firm, non-L emps, NGOs)
b. Imputed disq: to all lawyers in firm/office (exceptions: previous govt
e. NO partnerships w/non-Ls in providing legal services
service; purely personal rel/conflict).
c. Possible remedies: refuse case; advise Cs to get separate counsel; WD; B. C Trust Accounts: where Cs $$ held (cant borrow/commingle funds; must
screen keep good records; withhold disputed $$ until resolved; safeguard Cs property)
d. Screening: 1) screened 2) not apportioned any fee 3) written notice given to a. Pooled acct: ok for smaller funds/short-term (interest state bar)
any affected former client 4) cert. of compliance to FC IV. Competence & Other Common Sense Duties to Client
B. Conflicts btwn Atty and Client A. D of Competence: act w/knowledge, skill, thoroughness & prep reas. nec.
a. Business w/C: ok if (1) terms fair & fully disclosed to C; (2) C has opp to a. If dont know law: ok if can learn w/o undue $/delay; be advised by assoc.
consult outside lawyer; (3) C gives written consent b. If violated: may face discipline by bar; DQ; civil malpractice liability
b. Publication rights Ks: only ok after rep ended (CA: discouraged b/f c. Cant enlist nonlawyers to engage in unauthorized practice of law
ended) B. D of Diligence: to diligently, promptly & zealously pursue case to end
c. Loans/advances to C: ONLY for costs/litig expenses of indigent C; or C. D to Communicate: keep C informed; return calls/e-mails;
litigation expenses w/promise to repay (CA: IOUs ok for anything but debt) a. Settlement offers to joint Cs: convey to all; must agree on division
d. Cant limit malpractice: + no settlement w/o written advice to consult D. Accepting Rep: free to accept/reject any case
TPA Gifts: cant solicit subst. gifts from C or draft legal instrument for a. Should accept: cases of defenseless/oppressed; some work w/o charge
non-relative C if provides subst. gift to you or close relative b. Must reject: if req violation of ethics rule (inc. youre not prepared to take)
e. Relationship w/OC: need informed consent if opp. repd by fam/SigO c. Scope: C decides substantive rights; L decides procedure & legal strategy
f. NO interest in cause of action: except liens for fees; contingency fees E. WD: timely notice; return unspent $ + all papers/prop (even if unpaid)
g. Trial counsel W: only if wont prej. C; testim = uncontested or re: services a. Mandatory WD: if rep would violate law/ethical rule
rendered; undue hardship if WD (CA: need Cs written consent) b. Permissive WD: good faith + FAIR (Financial burden; Acts illegally;
C. Conflicts Btw Clients: potential ok w/consent of all (actual = not ok) Insists on course you find repug; Refuses to cooperate)
a. No C on opposite side of same matter of ANY C of other lawyer at firm F. Other duties: to be reasonable/sensible (+ no sex w/C unless prior rel)
b. Multiple Cs in same matter: can act as intermediary btw insured/ins; C &
its Ds/Os/Ss; both spouses in divorce/will (not in crim cases b/c 6th A) V. Advertising & Solicitation (candor to public & dignity of prof.)
c. Inconsistent positions: ok w/consent of both (unless would disadvantage) A. Advertising: must be true and not misleading
a. Ad regs: must meet IS (SGI + materially advances + narrowly drawn) a. P/S responsible for subords viol if: ordered/ratified conduct; has direct
b. Cant advertise legal specialty unless certified (must ID certif. org in ad) supervisory authority; knows but fails to take remedial action
c. Targeted mailings: must be labeled ad, cant harass/solicit if C objects C. Sale of law practice
d. CA: presumes improper guarantees; warranties; predictions
B. Solicitation: cant seek paid emp by live/phone contact w/prospective
client if no prior personal, professional or family relationship
a. NO paid referrals (CA: ok if doesnt total fee); reciprocal ok (if not excl)
b. CA: presumption that comm. @ accident scene, hosp, etc. = improper
VI. Duty of Candor to Court & Fairness to Adversaries
A. No dishonesty, fraud, deceit, misrepresentation (can override DOC, DOL)
B. Present facts/evidence truthfully: no false statements/evidence
a. C perjury: instruct to tell truth; attempt WD; tell J (CA: use narrative)
C. Produce evidence: cant suppress/obstruct/tamper w/evid
a. Contraband: must turn over to PO/DA; but need not reveal source
D. State law truthfully: no knowing false statements/frivolous claims
E. Uphold law: may disclose to prevent serious bodily harm; WD if nec.
VII. Addl Duties of Fairness: behave honestly, promote pub confidence
A. Deal fairly w/others: cant lie/mislead; violate rights to obtain evid;
embarrass/burden/harass; comm. w/repd party (w/o auth/consent)
B. Dealing w/press: no statements subst. likely to materially prej. case
a. Exceptions: pub records; booking info; warnings; replies to attacks
C. Duty of prosecutor: seek justice (must have PC; protect Ds rights, disc.
evid)
VIII. Preserving Dignity/Decorum of the Court & Profession
A. Preserve impartiality: no chicanery, abusive/obstreperous conduct;
talking to prospective/empanelled jurors
B. Expedite Cases: follow proced. rules/orders; not obstruct discovery
C. No unauthorized practice: where suspended/not admitted unless pro
hac vice or exception (CA: misdemeanor of not admitted to bar/exception)
a. Temp practice ok if associate w/locally admitted lawyer; services relate to
ADR; or reasonably related to in-state practice & pro hac vice not reqd
b. Permanent MJP: ok for in house counsel, legal services authorized by law
c. Must report misconduct: if raises subst Q as to honesty/trust/fitness as L/J
(CA: must self-report in certain cases)
d. Ancillary services: allowed, but abide by relevant PR regs
e. No political contributions to obtain govt employment (but gen = ok)
D. Admission to profession: must be rationally related to fitness/capacity
IX. Forms/Requirements of Legal Practice; Duties of Subordinates
A. Forms of Practice: firms; associations; LLCs; LSOs
a. Firms: no false/misleading names or name of active public officials
b. Cant be partner w/nonlawyer if ANY partnership active. incl. law practice
B. Responsibilities of partners/supervisors: ensure conformance w/RPC
Property Checklist a. T for years: fixed time; no notice to term; in writing if > 1 year
I. Present Estates b. Periodic T: successive intervals, express/implied; holdover implied P/T
A. FSA: to X & heirs; max legal ownership; infinite dur; freely (measured by how rent tendered); term by notice (equal to term, 6 mo/yr)
alienable/divisible c. T at will: term. at any time by either party; at sufferance: holdover T
B. Fee tail: to X & heirs of body; ML FSA; CL: passes directly to lineal desc. B. Ts duties: pay rent (unless LL release; 100% condemn; const evict); ord repairs
C. Defeasible Fees: rqs words > wish/hope/intent; alienation rst ok if limited t/p (unless lease specifies > or <); no waste; cant remove fixtures (unless comm.)
a. FSD: to A during/until; automatically reverts to G; G has POR a. Abandonment: LL can surrender; ignore (some jx); re-let & hold T for
b. FSSCS: to A, but, if; G may reenter if condition occurs; ROE in G or dmgs
TP C. LLs Duties: deliver possession (maj actual); quiet enjoyment (breached by
c. FSSEL: to A, but ifto TP; estate TP if condition occurs; shifting EI wrongful/constructive eviction); maintain common areas; IWOH (resid only)
cuts short prior estate; springing EI cuts short Gs reversion; RAP applies a. Constructive evic: subst interference + T notifies + not fixed + T vacates
D. Life Estate: to X for life; alienable to extent of int; ord use/profits; pay taxes b. IWOH breach: T can move out, repair+deduct; reduce rent; remain+ dmgs
a. Pur autre vie: measured by life of another to X for life of Y c. No retaliatory evictions: if T reports LL, LL cant evict; rent; harass T
b. NO waste: voluntary ( value, except PURGE); permissive (no disrepair); D. Assignments/subleases: ok unless prohibited; waived by acceptance (perm)
ameliorative (no unilateral conversions; consent of future takers reqd) a. Assmt: 100% interestT2; LL/T2 in privity of estate; LL/T1 still privity of
E. Alienation rst: none on FSA; conditions ok if lim t/p; right of 1st refusal to G ok K
b. Sublease: partial transfer; neither privity of estate or K (T1 100% L for
II. Future Interests cov.)
A. In the Grantor: POR (for FSD); ROE (for FSSCS); reversion (if G transfers < E. LL tort liability: CL NO duty; modern: known latent defects (must warn, but
FSA) not repair); furnished apt (ST); common areas; assump of repairs; public use
B. Remainder (in transferee): created by same doc as PE; follows freehold estate;
V. Easements
cant cut short prior estate (never follows DF); no time gap btw PE & R
a. Vested: in existing person, no CP; rt against PO for waste/taxes/mortg int. A. Affirmative: nonpossess. right to use land; no excessive use; S may use too
i. Indefeasible: no strings attached ( A for life, rem to B) a. Appurtenant: takes 2 (D/S); In Gross: grant for personal/$ use (S, but no
ii. Subj to div: b/c CS (A for life, rem to B, but if B dies bef 25 C) D)
iii. Subj. to open: vested in group/class (closed once any B can take) B. Negative: prevents S estate from doing something (air/light/lat support/view);
b. Contingent: unasc. P or subj. to CP; RAP applies; no rts for tax/waste; must be expressly created
i. Destructibility (CL): if R dies before rmdr vests (heirs get nothing) C. Creation (PING): grant (written if >1y); implication; necessity; prescription
ii. Shellys case: life est w/rmdr in heirs = FSA (mostly abolished) (AP)
iii. Worthier title: live G rmdr in Gs unknown heirs = reversion to G D. Transfer: appurtenant w/D estate; w/S estate to BFP if notice (actual/implied
C. Executory Int: created in TP; cuts short interest of DF holder (shifting) or G /const), intent, touch & concern; in gross: NOT transferable unless comm. purp.
(springing); RAP applies (last named B; all priors & next B take, no one else) E. Termination (END CRAMP):estoppel; necessity (end of); destruction (by other
D. RAP: interest cant > 21 yrs after death of a measuring life than S); condemnation (by ED); release (in writing, by holder); abandonment
a. Where applies: exec int; conting rem; class gifts; opt to purchase (shown by physical actions); merger (unity of ownership); prescription (AP)
b. Open class: bad as to one, bad as to all if RAP viol for any taker VI. Licenses, Profits, Covenants & Equitable Servitudes
c. Charity to charity gift: RAP doesnt apply; EI w/no time limit: not ok A. License: perm. to enter land; personal/non-assignable; revocable (unless
III. Concurrent Estates coupled w/interest or reliance); failed easmt; no SOF reqt
A. J/T: 4 unities (time/title/interest/possesion); survivorship; sev/part/mtg T/C B. Profit: rt to enter land, extract profit (i.e. timber, oil); same rules as easmts
a. Unilat mortgage: lien theory (maj) wont sever; title theory severs, m C. Covenant: aff/neg promise/rest. re use of land, enforced at law ($$ dmgs);
B. T by Entirety: J/T + H&W; cant unilaterally convey (wont sever); T/C at a. Burden runs w/land if: writing + intent + T&C + H/V privity + notice
divorce b. Benefits run if: writing + intent + T&C + vertical priv
C. T in C: unity of possess; freely transferable; no survivorship; partition avail. D. Equitable Servitude: aff/neg promise re use of land, enforced at equity (injx)
D. Rights/duties: contributions for repairs; mortgage; taxes; not improvements (but a. Creation: writing + intent + touch & concern + notice (WITN ES)
maybe adj. at sale); no waste; no AP w/o ouster; rent fairly app. b. Implied: common plan/scheme + notice to B (actual/inquiry/record);
defenses = d conditions; unclean hands; acquiescence; laches; estoppel
IV. Landlord/Tenant Law
VII. Adverse Possession
A. 4 Types of Leaseholds
A. Elements (COAH): continuous (for SOL) + open & notorious + actual + hostile E. Effect of foreclosure: terminates jr. interests (if notice/joinder); doesnt affect
B. Tacking: allowed w/privity (i.e. blood, K, deed, will); defeated by ouster sr. interests; subord. clause = ok failure to incl. nec party pres. of mortgage
C. Disabilities: SOL wont run against O disabled at inception (i.e. infant, insane, a. Buyer at F/C sale takes subject to sr. mtg (but, could be F/C if not paid)
imprisoned); doesnt apply if O later disabled F. Redemption: in equity till date of F/C sale; statutory (some states, after F/C)
VIII. Land Conveyancing: Purchase & Sale of Real Estate XI. Lateral & Subjacent Support; Possessors Rights
A. Land sale K: written + signed by D + price/consid + land description (applies A. Support of land: negligence reqd for damage to artificial structures; SL if in
till closing); risk of loss on B once signed; if imperfect, can req SP w/reas. in natural condition (P must show improvements didnt cause collapse)
price B. Possessors: right to be free from trespass & nuisance (unnreas int. w/use/enj)
a. Part perf: SOF exception if 2/3 of possession, payment improvement XII. Water Rights
b. Implied promises: marketable title @ closing (no AP, encumbrances, A. Riparian Doctrine: water belongs to Os bordering its course; entitled to
zoning viol); no material misreps (must discl. latent defects); caveat emptor reasonable use; use cant unreasonably interfere w/others
B. Closing: extinguishes land sale K (legal titleB); must be lawfully executed (in B. Prior appropriation doctrine: right to divert whether or not O; 1st in time, 1st
writing + land descrip); + delivered (need not be actual, intent = key; escrow ok) in right; any productive/beneficial use = ok (even crops)
a. Express rejection: defeats deliv; oral conditions on transfer drop out (SOF) C. Groundwater: surface owner can make reasonable (not wasteful) use
C. Covenants of title: D. Surface waters (rain/snow): common enemy (O can drainage to combat
a. Quitclaim deed: No covenants (but implicit promise of mark title @ close) flow); modification (can make s to prevent harm to others land)
b. GW deed: present: seisin (owns), right to convey, against encumbrances;
future: quiet enjoyment (no TP title), warranty, further assurances XIII. Eminent Domain
c. Statutory SW deed: G promises conv. only to B + no encumbrances by G A. Govt has 5th A power to take private prop for public use if pays just comp
B. Explicit takings: govt condemnation; Reg takings: deprives land of value
IX. The Recording System: protects only BFPs & mortgagees!
C. Remedy: compensate O; terminate reg + pay O for any damages incurred
A. Forms of Notice: actual; inquiry (duty to inspect); record (if prop recorded)
B. BFP always wins in notice jx; wins in race-notice if records properly before A; XIV. Zoning
in either case, B loses if A recorded before b takes (b/c not BFP!) A. Under police powers, govt may legislate to reasonably control land use
C. Recording: must include chain of title (gaps/wild deeds inoperable title) B. Variance: ok if P shows undue hardship + wont neighboring prop values
a. Shelter rule: non-BFP transferee takes shelter in status of transferor C. Prior nonconforming use: cant eliminate all at once w/o just compensation
b. Estoppel by deed: cant later acquire title to conveyed realty (bad transfer) D. Exactions: amenities sought by govt in exchange for permission to build
D. Conveyance by Will: ademption of specific prop gift if no longer owned; at CL, a. inherently suspect; must be reasonably related in nature & scope to nature
gifts must be exonerated by Ds estate (not under ML); lapse/anti-lapse of proposed development
X. Mortgages
A. Creation: debt/debtor + voluntary transfer of lien in Ds land to secure debt
(usually written note); equitable mortgage: debtor gives valid deed to creditor
B. Transfer of interest: by endorsement/delivery of mortgage note to transferee (T
= holder in due course); or separate document of assignment
a. Holder in due course: note must be negotiable (payable to mortgagee) +
endorsed by M + delivered to T + taken in good faith + T pays value (T
takes title free of personal defenses against original mortgagee; but still
subject to MAD FIFI^4-pack: mat-alt; duress; fraud in factum; incap; illeg;
inf; insol)
b. If B assumes: B = primarily liable, O = 2ndarily liable; If B takes
subject to: O = solely liable (but if doesnt pay, M may be foreclosed)
C. Recording statutes: apply to mortgages as well as deeds; 1st in time, 1st in right
a. Purchase $$ mortgagee: superpriority for mtg to acquire land
D. Foreclosure: by proper judicial proceedings, land sold $$ satisfies debt
a. Deficiency action (against debtor): if proceeds = < amt owed
b. Surplus: pay of jr liens IN FULL in order of priority, remainder to debtor
Remedies Checklist CONTRACT REMEDIES
***Order of Analysis: Legal; Restitutionary (legal, then equitable); Equitable I. Legal Remedies (damages)
A. Expectation: put P in same position as if K performed
TORT REMEDIES a. Rqts: causation + prox cause + certainty + unavoidability (P must mitigate)
I. Legal Remedies (damages) B. Consequential: related to breach + foreseeable at time of K
A. Compensatory Damages: put P in position as if injury hadnt occurred C. Liquidated dmg clauses: dmgs difficult to ascertain at time of K +
a. Rqts: causation + prox cause + certainty + unavoidability (P must mitigate) reasonable forecast (if valid; ONLY liquidated dmgs; if not, ONLY actual)
b. Future dmgs: >50/50 likelihood; past losses: req more certainty (hist rcd) D. NO punitives! (but look for tort COA if bad conduct)
B. Nominal Damages: no actual injury, vindicate Ps rights (minimal) E. Restitution: prevent unjust enrichment (if $$, value of ben conferred)
C. Punitive Damages: reqs existing dmg award + Ds fault = greater than a. Available remedies: restitution (value of benefit); replevin; ejectment
neg + award = relatively prop. to actual dmgs (SC: single-digit multiple) b. Where applies: material breach (value of benefit conferred, can be > K for
II. Legal Restitutionary Remedies non-breacher); unenforceable K (recov of goods or value of ben conf)
A. Restitutionary Dmgs: value of benefit to D (prevent unjust enrichment) c. CL: breacher cant recov; ML: can recover, but not > K and subtract D
dmgs
B. Replevin: recov of Ps specific personal prop (if D wrongfully withheld)
a. Timing: pretrial ok w/bond (Sherriff recovs); D can defeat w/redeliv bond II. Equitable Remedies
C. Ejectment: remove trespassing D/recover real prop (D must have poss.) A. Specific Performance: requires D to perform K according to terms
a. Note: replev/eject always coupled w/dmgs for loss of use/benefit B. 6 requirements for SP: cha cha is my favorite dance
III. Equitable Restitutionary Remedies a. Valid contract: show terms w/more certainty than for $$ dmgs
b. Ps conditions satisfied: performed, ready & able to perf, or excused
A. Where applies: improperly acquired prop + D has title (usually
c. Inadequate legal alt: $$ insufficient, or unique prop (land = always
insolvent) unique)
a. Rules: inadequate legal remedy; traceable; BFP > P; P > unsecured creditor
i. Land sellers rule: can get SP even though only have $$ coming (price)
b. If prop in value, use CT; if prop in value, use EL (may deficiency J)
d. Mutuality of performance: reqd at CL; ML = mutuality of perf. may be
B. Constructive Trust: D as trustee, must return prop to P ($ traceable) req
C. Equitable Lien: court directed sale of prop; proceeds P e. Feasible enforcement: never for personal service Ks (otherwise like torts)
IV. Equitable Remedies (permanent/temp injunctive relief) f. Defenses: unclean hands; laches; unconscionability (at formation); mistake;
A. Temp/prelim injunction: pending trial on merits; rqs irreparable harm + misrepresentation; SOF (but part perf may suffice)
likelihood of success on merits (>50/50); TRO: pending PI hearing ok if < 10 C. Common SP issues
days a.Deficiencies: S cant deliver consid (delay, title defect); Seller P can
B. Permanent Injunction: negative (refrain) or mandatory order enforce if minor defect; buyer P can enforce even if major ( abatement in
a.5 considerations: inadequate legal remedy; prop right (CL)/protectable price)
interest (mod); feasibility of enforcement; balance of hardships; defenses b. Equity abhors forfeiture: SP granted if only small loss to S; de minimis
b. Defenses: unclean hands (related to suit); laches; impossibility; free speech tardiness in payment; waiver (prior late pmt acc.); undue hardship to B
c. Whos bound: parties; employees/agents w/notice; 3rd persons w/notice c. Equitable conversion: prop interest switches upon K execution (ROLB)
d. Erroneous/outdated injunx: must STILL be obeyed (till d. Covenants not to compete: valid if protects legitimate interest of protected
modified/dissolved) party (i.e. unique svcs) + reasonable geog. & durational scope
e. $$ dmgs: available for injuries incurred prior to obtaining injunx D. Rescission: original K voided & rescinded (reqs: grounds + defenses)
C. Contempt: for disobeyance of ct order; civil: fine or prison (can get out if a. Grounds: mutual mistake of material fact; misrep (+ P reliance); coercion;
comply); crim: fine or prison for set amt of time (never for failure to pay jdgmt) UI; lack of capacity, failure of consid; illegality; unilat mistake if nonM
knew
b. Defenses: unclean hands; laches; not Ps neg
c. Election of remedies: no rescission if sued for dmgs first (ok if vice versa)
d. Restitution: for previously performed K portion (svcs, purchase price, etc.)
E. Reformation: s to written K to conform w/parties orig. understanding
a. Grounds: mutual mistake; misrep; unilat mistake if known by non-M party
b. Defenses: unclean hands; laches; SOF; PER; not Ps negligence
Torts Checklist a. Children: >4 no neg; 4-17: reas child sim age/exper/circ (unless adult
I. Intentional Torts (require INTENT plus) activ)
b. Professionals: care of avg member of prof in sim community/specialization
A. Battery: harmful/offensive (unpermitted) contact w/Ps person
c. Landowners
B. Assault: placing P in apprehension (knowledge) of immediate battery
i. undiscovered trespassers: NO duty owed
C. False Imprisonment: act of restraint in a confined/bounded area
ii. Discovered/anticipated T: known, man-made death traps
a. P must know or be harmed by act + no reasonable means of escape
iii. Licensee (i.e. social guest): all known traps/conditions
b. Shopkeepers priv: brief det. ok if reas. believe P stole; priv of arrest: PO
iv. Invitee: reasonably knowable traps/conditions
D. IIED: outrageous conduct Ps severe distress (watch for fragile class Ps)
v. Child trespassers: RP SOC if attractive nuisance (ok if make safe/warn)
E. Trespass to Land: physical invasion on Ps land (on/above/below)
d. Statutory SOC: neg per se if stat. aimed at class of D for class of risk
F. Trespass to Chattels: interfer. w use/enjoyment of chattel (D: cost of rep)
e. NIED: neg + P in zone of danger + phys. manif. of distress (or fam CW)
a. Recapture: reas force to recover wrongfully obtained prop ok (no P dmgs)
f. NO duty to Rescue: unless SR; caused peril; undertook (must act as RPR)
G. Conversion: subst. interference w/chattel (liable for full value)
H. Negligent Misrepresentation: bus/prof misrep + P justifiably relies VI. Breach: why/how D violated duty
I. Intentional Misrep: knowing misrep + intent to induce rel + justif rel A. RIL: normally assoc. w/neg + exclusive control of D ( presumption of neg)
J. Wrongful Institution of Legal Proceedings: crim proceedings against P w/o VII. Causation
PC + judgment for P + D had improper purpose A. Factual Cause: but/for (merged: subst factor; unasc: BOP on D to rebut)
K. Interference w/Business Relations: K/bus expec. btw P & TP + D knows + D B. Proximate Cause: foreseeable result (direct chain = always foreseeable)
intentionally interferes/terminates a. Indirect: med neg; neg rescue; protection/reaction; subs disease/accid.
L. Nuisance: unreasonable interference w/Ps use/enjoyment of land (or VIII. Damages: take your P as you find them
w/health/safety/property of public); even if D acted reasonably A. Duty to mitigate: reasonable steps to mitigate damages
II. Affirmative Defenses to Intentional Torts B. Collateral source rule: dmgs not reduced just b/c alt recovery source
A. Consent: knowing + voluntary + capacity (express/implied); has scope IX. Affirmative Defenses
B. Self-Defense/Defense of Others/Defense of Property: in the moment + reas A. Comparative Neg: complete bar at CL; pure CN: recovery by % fault
belief in necessity + proportional force (deadly only if life in danger) B. Assumption of risk: may bar if knew and voluntarily assumed risk
C. Necessity: emergency trespass (pub: abs priv; private: $ dmgs to P)
X. Strict Liability
III. Defamation A. Livestock/wild animals (not domesticated unless vicious/prior knowledge)
A. Defamation: defam statement re: P + publication + damages (maybe) B. Ultra-hazardous activities: cant make safe + risk severe harm + uncommon
a. Libel: written (dmgs presumed); slander: spoken (per se = presumed C. Dangerous/defective consumer products (can be SL or neg liability)
dmgs) a. SL: merchant + prod defect (mfr/design) + no alteration + foreseeable use
B. Defenses: consent; truth; privileges (spousal, govt, compelled, qualified)
C. 1st A: pub concern (req falsity+fault); pub off (+malice; otherwise neg)
XI. Implied Warranties & Representation Theories of Negligence
A. IW of merchantability: avg quality + fit for ordinary purpose of use
IV. Privacy Torts B. IW of fitness for a particular purpose: B relying on S expert. + S knows
A. Appropriation: using Ps name/likeness for commercial adv (ok if news) a. Rqts: breach + causation + damages (Ps in horizontal privity can sue)
B. Intrusion: on Ps seclusion (obj to avg person; reas expectation of privacy) C. Express W: affirmation/promise basis of the bargain
C. False light inv. of privacy: widespread dissem of material misrep D. Misrep of material fact: statement of material fact re: goods + intended to
a. objectionable to avg person; need not be false or intentional induce Ps reliance + P justifiably relies + P harmed by rep
D. Disc. of private fact: widespread dissem of info + obj to avg person
a. Exceptions: newsworthiness (pub need to know); dual life situations
XII. Vicarious Liability + Miscellaneous Topics
E. Defenses: consent; defamation privileges A. Vicarious Liability: employer/employee (scope of emp+not int); hiring
party/IC (unless invitee/nondelegable duty); car owner/driver (unless Os
NEGLIGENCE errand); no par
V. Duty B. Co-D rights: indemnification (VL; SL non-mfr from mfr); comparative fault
A. Default std of care: RPP under similar circ; owed to all foreseeable Vs C. J&S liability: where P can recover fully from any liable party
B. Special situations: children prefer parents saying nursery rhymes D. Loss of consortium: can recover loss of services; society; sex
Torts Essay Checklist A. Theories: SL; negligence; implied/express warranties; misrepresentation
I. Intentional Torts B. Strict products liability: defect; causation; damages
A. Assault: reasonable fear by P of immediate battery a. Defective product: manufacture; design defect; failure to warn
B. Battery: harmful or offensive contact w/Ps person C. Negligence: basic neg analysis (unlike SL, must establish Ds fault)
C. False Imprisonment: act confining P in a bounded area D. Implied warranties: merchantability; fitness for particular purpose
D. Intentional Infliction of Emotional Distress (IIED): outrageous E. Express warranty/misrepresentation
conduct causing severe emotional distress VI. General Considerations
E. Trespass to Chattels/Conversion: damage to Ps personal property A. Vicarious Liability: if two or more Ds
F. Trespass to Land: physical invasion of Ps land a. Respondeat superior: employer/employee, tort in scope of emp.
G. Nuisance: unreasonable interference w/Ps use/enjoyment of property b. Independent contractor: P not liable unless (1) inherently dangerous
H. Defenses: activity; (2) nondelegable duty; (3) harm to invitee
a. Consent: capacity? Express? Implied by conduct/usage? Scope? c. Partner/joint venture: i.e. auto drivers, bailees, etc.
b. Defense privileges (i.e. of self/others/property): must be reasonable B. Joint Liability: J&S; releases; contribution; indemnification
c. Necessity (pub/priv): if private necessity, P pays for actual damages C. Wrongful Death: if someone died
II. Defamation/Invasion of Privacy D. Immunities: if D = immediate family, govt or charity
A. Defamation: defam. statement; of/concerning P; publication; damages VII. Answer structure Example
a. Defenses: truth (if MOPC); absolute/qualified privilege A. State issue: P is suing D for a battery
b. Constitutional issues: falsity; fault (depends on status of P & def.) B. State prima facie case: To establish PF case for battery, P must show
B. Invasion of Privacy that
a. Appropriation: of Ps name/likeness for Ds commercial advantage C. Apply law to facts: Here, P will show that(apply to each element)
b. Intrusion: into Ps privacy or seclusion D. State conclusion
c. False light IoP: publication of facts placing P in false light E. Raise applicable defenses: D may assert the privilege of self-defense.
d. Publication of private facts: about P D must establish that
III. Negligence F. If applicable, raise general considerations: Ds may be vicariously
A. Prima Facie Case liable under respondeat superior. To establish this, P must show that
a. Duty of care: foreseeable P; SOC
b. Breach: SOC violation; statutory violation; RIL
c. Factual & proximate cause: cause in fact; foreseeable
d. Damages
B. Defenses
a. Contributory negligence
b. Comparative negligence
c. Assumption of risk
IV. Strict Liability
A. Animals: SL for dangerous and trespassing animals
B. Inherently dangerous activities: activity involves serious risk of harm;
cant be performed w/o serious risk of harm; not common in community

V. Products Liability
California Wills Checklist A. Manners of revoking: express & implied (nothing left for will 1)
I. Intent B. Revival: by physical act or subsequent instrument + intent to revive
A. Capacity: 18 + understand extent/objects of will + know nature of act IX. Revocation by Operation of Law
B. Insane Delusion: false belief +sick mind+no evid for belief affects A. Omitted child, spouse or DP: IS + assets in any IV trust; abatement
will B. Final dissolution of marriage/DP: revocation of devise to S/DP
C. Fraud: intentional false misrep of material fact action/inaction by T X. Revocation by Change in Property Holdings (Ademption)
D. Undue Influence: subjugation of (weak) Ts free agency A. Gift Classification: specific; general; demonstrative (hybrid); residuary
a. Statutory UI: drafter, drafters spouse, fiduciary, care custodian B. Ademption by Extinction: type of gift? did T intend it to fail?
II. Mistake C. Ademption by Satisfaction: IV down payments (only for general
A. Content: wrong beneficiary named/gift made (omission or addition) gifts)
B. Execution: T signs wrong doc (no probate b/c no intent) D. Advancements: IV down payment by intestate to heir apparent (no will)
C. Inducement: gift made on basis of erroneous beliefs (gen. FAILS) XI. Contracts not to Revoke or Make a Will
D. Description (ambiguity): unclear who/what (use PE to det. Ts intent) A. Requirements (5 means): material provisions; express reference; writing
E. Dependent Relative Revocation (DRR): mistake in validity of similar, evincing K; agr. btw T & promise; agr. btw T & 3rd party
subsequent will may probate of previously revoked will B. When cause of action accrues: on Ts death
F. Mistake involving living children (pretermission): IS + % of trust assets C. Joint & Mutual Wills: may be evidence of K not to revoke (no
III. Components of the Will presump.)
A. Integration: intent+presence at exec. (prove by phys. or logical connection) D. Remedies available to promise: damages; SP; constructive trust
B. Incorporation by Reference: existing doc IDd in will + intent to XII. Restrictions on Testamentary Dispositions
incorp. A. Spousal/DP Protection: can give only of CP; widows election
C. Facts of Independent Significance: w/o will, fact would still exist B. Unworthy heirs or beneficiaries (Killers): taking nothing under will
D. Pour Over Wills: provision leaving part of estate to inter-vivos trust
XIII. Intestate Succession
a. Validate: by reference; independent significance; UTATA
A. Order: spouse/DP; issue; parents; parents issue; GPs; GPs issue, etc.
IV. Formalities of Execution for Wills
B. Surviving Spouse/DP: of CP/Quasi-SP; SP depends on relations/issue
A. Attested wills: writing + signed by T/rep + 2 Ws who know its Ts will C. Per Capita; per capita w/representation; per stirpes
a. CA substantial compliance doctrine: ok if no fraud or mistake
D. Adopted Children: treated as natural children
B. Interested witnesses: Bs under will ( presumption of invalidity)
E. Non-Marital Children: key Q = did parent/child relationship exist?
C. Conditional wills: conditional by its terms; probated if condition met
D. Holographic Wills: signed by T + material provisions in own writing; XIV. Distribution of the Estate: Who Takes?
must estab. testamentary intent (extrinsic ok); no date reqd A. Posthumous Children: in the womb at death heir
B. Lapse & Anti-Lapse: B must survive T to take (if kindred, issue may
V. Choice of Law
take)
A. Can be probated in CA if complies w/formalities of: CA law; law
C. Simultaneous Death: if 2 die together, each predeceased other
where executed; or law where T domiciled at time of execution
XV. Distribution: What does B Take?
VI. Codicils: provisions that modify/amend/revoke a will
A. After-acquired property: passes through will
A. Republication: from date of execution
B. Increase during Ts lifetime: paid to B if owned at Ts death
B. Revocation: revoking C presumed only C (if c+w, presumed both)
C. Increase after Ts death and during probate: if specific devise, B
VII. Revocation by Physical Act: act + intent must coincide takes
A. Cancellations & Interlineations: crossing out/writing btw lines D. Abatement: of certain gifts to pay for OC/OS
B. Duplicate Wills: if revoked, other duplicate original also revoked E. Exoneration: when debt on gift is extinguished (can take even w/debt)
C. Mutilated Wills: rebuttable presumption that T intended to revoke XVI. Will Substitutes
VIII. Revocation by Subsequent Written Instrument
A. Gifts causa mortis (personal prop + delivery); Totten Trusts (see
trusts)

Trusts Checklist VIII. Trustee Powers & Duties


I. Private Express Trust A. Trustee Powers: all enumerated & implied in trust
A. Definition: a fiduciary relationship w/r/t property whereby one person (the B. Fiduciary duties owed to Bs by T:
trustee) holds legal title for the benefit of another (the B); and which arises out a. Loyalty: administer impartially & for sole benefit of Bs
of a manifestation of intent to create a trust for legal purposes b. Care: act as RPP dealing w/own affairs
B. Property of trust or corpus: any presently existing property interest c. To invest: state lists; prudent investor (CL); uniform prudent investor
C. Beneficiary: any ascertainable person or group of persons (reas. size) d. To earmark: label trust property as such
D. Trustee: caretaker of the trust e. To segregate: cant commingle personal funds w/trust funds
E. Manifestation of intent: reqd at time of creation (> precatory words) f. NOT to delegate: authority to make decisions (but can be advised)
F. Creation: by will, or IV (transfer in trust delivery reqd; declaration in g. To account: give Bs regular statements of income & expenses
trust) C. Remedies for breach: damages; constructive trusts; tracing + equitable
G. Legal Purpose: required both at and after creation lien; ratify transaction if good for B; remove trustee
II. Charitable Trust D. Liability of T to 3rd parties:
A. Definition: trust conferring substantial benefit on society a. Contract: must be sued in rep capacity if entered K as such (& P knows)
B. Creation: intent + transfer of prop interest + for legal purpose b. Tort: T sued in personal capacity, but liable only if personally at fault
C. Beneficiary: society IX. Modification & Termination of Trusts
D. RAP: doesnt apply (charitable trusts can endure forever) A. Modification by settlor: ok if expressly reserved (implicit in power to
E. Cy Pres (as nearly as possible): can modify if impracticable gen. intent revoke)
III. Pour-Over Wills B. Modification by court: ok for charitable trusts w/cy pres
A. Validation: by reference; independent significance; UTATA a. Deviation power (doctrine of changed circumstances)
IV. Miscellaneous Trusts C. Termination of revocable trusts: must be expressly reserved by S
A. Honorary Trusts: no ascertainable B + no substantial ben. on society (maj.)
B. Totten Trusts: B takes whats left in bank account at trustees death D. Termination of irrevocable trusts: (1) settlor & all Bs agree; (2) all Bs
agree + all material purposes accomplished; (3) operation of law
V. Restraints on Alienation
A. Voluntary alienation & Involuntary attachment: VALID X. Income vs. Principal Problems
B. Spendthrift Trust: restricts alienability by its terms A. Income/expenses allocated to LT: cash dividends; interest; net business
C. Support Trusts: T may use only whats necessary for Bs health/support income (must pay interest on loan debt, taxes, minor repairs)
D. Discretionary Trusts: T decides when and how much to pay B B. Income/expenses allocated to remaindermen: stock dividends/splits;
net proceeds on sale of trust asset (must pay principal part of loan debt;
VI. Resulting Trusts
major repairs/improvements)
A. Definition: implied in fact based on presumed intent of parties
C. Adjustment power of trustee: can adjust rules if different allocation
B. How arises (7 situations): private trust ends by own terms, fails b/c no
necessary to administer trust fairly
beneficiary or has excess corpus; charitable trust ends b/c impossibility; private
expr. trust becomes illegal; purchase $ resulting trust; semi-secret trust (no B)
VII. Constructive Trusts
A. Definition: remedy to prevent fraud/unjust enrichment
B. How arises (4 situations): trustee self deals; UI or fraud in inducement;
secret trusts (law of wills); oral real estate trusts

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