Slam Dunk The Bar

Corporate principal

A corporation is a legal entity created for the purpose of conducting business. A corporation must have legal existence to be considered a principal in an agency relationship. Corporations that are yet to be formed (i.e., future incorporation pending) cannot be principals. Corporate officers, employees of the corporation, and other persons can serve as agents of the corporation.

Supplemental Jurisdiction to Diversity Cross-Claims

A cross-claim that arises out of the same transaction or occurrence may be asserted by one defendant against another defendant without regard to the amount in controversy or the citizenship of the parties to the cross-claim as long as the court has subject matter jurisdiction.

Annulment

An annulment voids a marriage and declares it as having never been valid (as opposed to divorce, which terminates a valid marriage). An annulment action involves two types of relationships: void and voidable.

Assault generally

An assault is the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself.

Public Disclosure - Disfavored

Because the public disclosure tort involves the dissemination of true facts, it clearly is in tension with the First Amendment's freedoms of speech and the press. Accordingly, the tort is disfavored in the modern era.

Strict Product Liability - Casual Seller

Because the seller must be in the business of selling similar products, a casual seller, such as an individual car owner who sells a car to his neighbor or an accountant who sells her office furniture to another businessperson, is not subject to strict liability.

Enforcement of Another State's Child Custody Orders - Registration

A custody order from another state can be registered with or without a simultaneous request for enforcement. Typically, most jurisdictions require at least one certified copy of the order from the appropriate entity. The registering court can then grant any relief available for enforcement of the registered order.

Joint Tenancy

A joint tenancy exists when two or more individuals own property with the right of survivorship (i.e., upon the death of a joint tenant, the interest terminates and automatically goes to the surviving joint tenants). Modern law calls for a clear expression of intent along with survivorship language.

Amendment of a Financing Statement

A person may amend a financing statement, such as by adding or deleting collateral covered by the statement. The amendment is generally effective as to the added item only from the date of the amendment. An amendment does not extend the period of effectiveness of the financing statement. UCC § 9-512.

Private Nuisance - Abatement

A person may enter another's land to abate a private nuisance after giving the defendant notice of the nuisance and the defendant refuses to act. The amount of force used may be only that which is reasonable to abate the nuisance; the plaintiff is liable for any additional damage.

Intentional Tort Defense - Reasonable Force

A person may use reasonable force to defend against an offensive contact or bodily harm that he reasonably believes is about to be intentionally inflicted upon him. The force used in self-defense must be reasonably proportionate to the anticipated harm. A person's mistaken belief that he is in danger, so long as it is a reasonable mistake, does not invalidate the defense.

Defense of Property - Reasonable Force

A person may use reasonable force to defend her property if she reasonably believes it is necessary to prevent tortious harm to her property.

Mortgage modifications

A senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage by making it more burdensome subordinates the modified aspect of his interest to a subsequent mortgage that exists at the time of the modification. The senior mortgagee's interest otherwise remains superior to the subsequent mortgage.

Separate Maintenance - Divorce

A separate maintenance action provides for a decree of support for a party, typically the wife and any minor children. It does not, however, authorize the parties to live apart. As with a limited divorce, the parties are still considered married and cannot remarry.

Personal Jurisdiction and Due Process

Due process requires that deprivation of property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Due process is met if the notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane, supra.

Contract Formation by Duress

Duress is an improper threat that deprives a party of meaningful choice. An improper threat is threats of a crime, a tort, or criminal prosecution, or the threat of pursuing a civil action (when made in bad faith).

Motions to strike and witnesses

During trial testimony, objections should be made after an improper question is asked but before the witness responds. If it is the witness's answer that makes the testimony improper (i.e., unresponsive to the question, hearsay, etc.), counsel should move to strike the answer as inadmissible.

Invasion of Privacy

Intrusion False Light Appropriation Private Facts

Collateral Estoppel and equitable issues

Issues decided under a court's equitable power, such as a bankruptcy court's avoidance of preferential transfers, can be precluded from re-litigation just as legal issues can, if all the requirements for collateral estoppel are met. See Katchen v. Landy, 382 U.S. 323 (1966).

Contract unenforceable for public policy

Even if a contract is neither illegal nor unconscionable, it may be unenforceable if it violates a significant public policy, such as a contract in restraint of marriage, a contract for the commission of a tort, or a contract that unreasonably restrains trade. Restatement (Second) of Contracts §§178-196.

Negligence Per Se - Reasonable Care

It is a defense that the defendant exercised reasonable care in attempting to comply with the statute.

Perfection of Security Interest

Perfection of a security interest is generally necessary for the secured party to have rights in the collateral that are superior to any rights claimed by third parties. Perfection has no relevance to the secured party's rights against the debtor. A security interest is perfected upon attachment of that interest and compliance with one of the methods of perfection. UCC §9-308(a).

Perfection of Advance and Timing

Perfection of a security interest dates from the time that an advance is made to the extent that the security interest secures an advance that: i) Is made while the security is only automatically or temporarily perfected; and ii) Is not made pursuant to a commitment entered into before or while the security interest is perfected by any other method of perfection. The advance is made "pursuant to a commitment" when the secured party is obligated to make the advance.

Conveyance of jointly owned property

Generally, a co-tenant in a joint tenancy or a tenancy in common can convey only his interest in jointly owned property. A deed executed by a co-tenant that purports to be a conveyance of the entire jointly owned property has the effect of conveying only that co-tenant's interest. A purported conveyance of a physical portion of jointly owned property is void.

Temporary Perfection by New Value Given

If new value is given under an authenticated security agreement, a security interest in certificated securities, negotiable documents, or instruments is automatically perfected for 20 days from the time it attaches without filing or the taking of possession. UCC § 9-312(e).

Timing for Answer when no motions under Rule 12

If no motion is made under Rule 12, then under Rule 12(a)(1)(A)(i), a defendant must serve an answer within 21 days after being served with the summons and complaint. If the defendant has timely waived service under Rule 4(d), then the defendant must serve the answer within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States. Rule 12(a)(1)(A)(ii).

Child Custody - Default Jurisdiction

If no state has jurisdiction through home-state jurisdiction or substantial-connection jurisdiction, then a court in a state that has appropriate connections to the child has jurisdiction.

Jury Instructions generally

If the jury is to render a general verdict, it is the judge's duty to instruct the jury on the law that governs the verdict. If the jury is to render specific written findings of fact, it is the judge's duty to give the jury sufficient instructions and explanations. Rule 49(a)(2),(b)(1); Notes of Advisory Committee on 2003 amendments to Rule 51.

Covenant of Quiet Enjoyment - Constructive Eviction

If the landlord breaches a duty to the tenant, such as failing to make a repair, that substantially interferes with the tenant's use and enjoyment of the leasehold by breaching a duty to the tenant (e.g., fails to provide heat or water), then the tenant's obligation to pay rent is excused due to constructive eviction only if the tenant gives notice and adequate time to permit the landlord to fulfill his duty and vacates the property within a reasonable amount of time.

Covenant of Quiet Enjoyment - Actual Eviction

If the landlord removes the tenant from the premises, then the total eviction terminates the lease and ends the tenant's obligation to pay rent.

Misunderstanding of Contract by Both Parties

If the misunderstanding involves a material term, and neither party knows or should know that there is a misunderstanding, then there is no contract. Restatement (Second) of Contracts § 20(1).

Fees and expenses if the motion to compel is granted in part

If the motion is granted in part and denied in part, then the court may apportion fees in its discretion, after providing an opportunity for the parties to be heard. Rule 37(a)(5)(C).

Fees and expenses if the motion to compel is denied

If the motion to compel is denied and the court determines that the motion was made without substantial justification, then the court must, after providing an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion her reasonable expenses incurred in opposing the motion, including attorney's fees. Rule 37(a)(5)(B).

Nuisance Damages - Continuing Nuisance

If the nuisance is a continuing one and the court deems it "permanent," then the court will award the plaintiff all past and future damages, which prevents plaintiffs from returning to the court to collect damages in the future. Occasionally, courts award temporary damages measured by the damages that have occurred prior to trial and within the statute of limitations. In these instances, plaintiffs may return to the court in the future to collect additional temporary damages if the nuisance continues.

Reselling Goods under UCC

If the seller elects to resell and sue for the contract price minus the resale price, then the resale must be (1) only of goods identified in the contract and (2) commercially reasonable. UCC § 2-706. However, if the seller wishes to resell the goods in a private sale, the seller must first give the buyer reasonable notice of his intent to resell. UCC § 2-706(3).

Personal Jurisdiction generally

In addition to having subject matter jurisdiction, a court must be able to exercise judicial power over the persons or property involved in the cases or controversies before it. This authority is broadly referred to as "personal jurisdiction" and is governed by state statutes regarding jurisdiction and the due process requirements of the U.S. Constitution.

In Personam Jurisdiction Due Process

In general, due process requirements are satisfied if the nonresident defendant has sufficient minimum contacts with the forum state such that the maintenance of the action does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310 (1945).

Judgment under Rule 9

Under Rule 9(e), in pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or an officer, it is sufficient to plead the judgment or decision without showing any jurisdiction to render it.

Special Damages under Rule 9

Under Rule 9(g), when an item of special damage is claimed, it must be specifically stated. Special damages are damages that do not normally or necessarily flow from an event.

Due-on-encumbrance clause

Similar to a due-on-sale clause, a due-on-encumbrance clause gives the lender the right to accelerate a mortgage obligation upon the mortgagor's obtaining a second mortgage or otherwise encumbering the property. A due-on-encumbrance clause is generally enforceable to the same extent as a due-on-sale clause. Restatement (Third) of Property: Mortgages, § 8.1, cmt.b.

Timing of 12(b) Motion to Dismiss

The defense of lack of subject matter jurisdiction may be raised at any time, even on appeal. Rule 12(h)(3). Under Rule 12(h)(1), the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process must be raised in a pre-answer motion or, if no pre-answer motion is made, in the answer, or the defenses will be waived. Under Rule 12(h)(2), the defenses of failure to state a claim upon which relief can be granted and failure to join a necessary or indispensable party under Rule19 may be raised in any pleading, in a motion for judgment on the pleadings, or at trial.

Complaint - Demand for relief

The demand for judgment for the relief sought may include relief in the alternative or different types of relief (e.g., monetary damages, equitable relief, or a declaratory judgment). The demand in a contested case does not limit the nature or scope of relief that the trial court may grant. The plaintiff is entitled to whatever relief is appropriate to the claims alleged in the complaint and proved at trial. Rule 54(c). A plaintiff's complaint may include relief in the alternative or different types of relief (e.g., monetary damages, equitable relief, or a declaratory judgment).

Subordination Agreement between mortgagees

The holder of a prior mortgage can agree to subordinate his interest to the holder of a subsequent mortgage. This agreement is enforceable unless the mortgage is not sufficiently described or specified.

Distribution of Foreclosure proceeds generally

The proceeds from a foreclosure sale are applied first to the costs associated with the sale, second to the balance and interest of the mortgage obligation being foreclosed, and third to the mortgage obligations owed to junior interest holders in the order of the priority of their interests. Any remainder is paid to the debtor-mortgagor.

Recovering the Price for Wrongful Rejection under UCC

The seller can recover the price after rejection only if the seller is unable to sell the goods at a reasonable price after a reasonable effort or circumstances indicate that such an effort will not yield a sale. UCC § 2-709(1)(b). If not defined in the contract, the price is a reasonable price. UCC § 2-305.

Right to Cure Under UCC

The seller has a right to cure a defective tender if: (1) The time for performance under the contract has not yet elapsed; or (2) The seller had reasonable grounds to believe that the buyer would accept despite the nonconformity. The seller must give notice of the intent to cure and make a new tender of conforming goods. If the seller had reasonable grounds to believe that the buyer would accept despite the nonconformity, the tender must be made within a reasonable time. Once cured, the tender is considered proper and valid. UCC § 2-508.

Tender - goods in the hands of the bailee

The seller must bargain for a negotiable document of title or obtain acknowledgment from the bailee of the buyer's rights in the goods. UCC§ 2-503(4). A contract that requires the seller to ship goods to the buyer by a third-party carrier is either a shipment contract or a destination contract. When the contract is otherwise silent, a shipment contract is presumed when the contract requires shipment by a third-party carrier. UCC§2-503 cmt. 5.

Seller's Insurable Interest in Goods

The seller of goods retains an insurable interest in the goods as long as the seller retains title to the goods or has a security interest in them. Unless the contract specifies otherwise, the title passes from the seller to the buyer when the seller completes his delivery obligations. At that point, the seller's insurable interest ceases unless the seller retains a security interest in the goods. When the seller alone identifies the goods, the seller may substitute other goods for those identified until default, insolvency, or notification to the buyer that the identification is final. UCC §§ 2-401; 2-501(2).

Damages for Wrongful Rejection under UCC

The seller would ordinarily be entitled to the contract price minus the market price at the time and place for tender, together with any incidental damages, less any expenses saved as a result of the buyer's breach. UCC § 2-708(1). In some circumstances, a seller cannot be made whole through resale at the contract price. This is true for volume sellers (those sellers who have an unlimited supply of the goods and who make a profit per item). Although they can resell the goods at the same price as the contract price, they have lost the opportunity to sell them in the first instance when the seller breached or repudiated. They are, therefore, entitled to those lost profits. To qualify as a "lost volume" seller, the seller needs to show only that it could have supplied both the breaching purchaser and the resale purchaser with the goods. In general, the measure of lost profit would be the list price minus the cost to the dealer or manufacturer. UCC § 2-708(2). The seller can receive damages in the amount provided in a liquidated damages clause provided the amount is reasonable. UCC § 2-718(1).

Tender of Performance in Real Estate Contracts

The seller's and the buyer's performance are concurrent conditions. Therefore, one is not obligated to perform without the other's performance. When one party, either the buyer or the seller, repudiates the contract, the non-repudiating party is excused from performing. However, if both parties fail to perform, then the closing date is usually extended until one of the parties performs or repudiates the contract. On the other hand, the inability of the seller to produce a marketable title does not automatically create a material breach; rather, the buyer must give the seller sufficient time to cure the title defect unless time is of the essence and the defect cannot be cured before the time fixed for closing.

Severance of Joint Tenancy

The severance of joint tenancy may occur in several ways. The severance of a joint tenancy converts it into a tenancy in common. However, if there are more than two joint tenants, a severance does not automatically affect the joint tenancy of all joint tenants.

Negligence - Anticipated Victim of a Crime

The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. Generally, a psychotherapist owes a duty only to her patient. For example, a psychiatrist who fails to correctly diagnose a suicidal patient is liable only to the patient if the patient commits suicide. However, when a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Choice of Law and burdens of proof

The specification of the applicable standards of proof is considered a substantive matter, and the law of the forum state will govern in a diversity case. Bank of Am. Nat'l Trust & Sav. Ass'n v. Parnell, 352 U.S. 29 (1956).

Standard for Judgment on the Pleadings

The standard for a motion under Rule 12(c) is generally the same as that for a motion under Rule 12(b)(6). Likewise, if matters outside the pleadings are presented to the court and the court does not exclude them, then the motion is to be treated as a motion for summary judgment under Rule 56.

Leases and Joint Tenancy

There is a split among jurisdictions with respect to how to handle joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.

Fraud or mistake under Rule 9

Under Rule 9(b), a party alleging fraud or mistake must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind, however, may be alleged generally.

Conditions Precedent under Rule 9

Under Rule 9(c), in pleading conditions precedent in a contract action, a party may allege generally that all conditions precedent have occurred or been performed. When denying that a condition precedent has occurred or been performed, however, the party must do so with particularity.

Official Document or Act under Rule 9

Under Rule 9(d), in pleading an official document or official act, it is sufficient to allege that the document was legally issued or that the act was legally done.

Types of Principals

(1) individuals over 18, as specified by contract, (2) employer, (3) entrepreneur, (4) corporation, (5) partnership.

Interpleader and in personam jurisdiction

An interpleader action is an action against the claimants, so the general requirements of in personam jurisdiction in federal court must be met.

Automobile Owner Liability by Statute

Many jurisdictions have enacted statutes that provide that the owner of an automobile may be liable for the tortious acts of anyone driving the car with permission.

Accounts under Article 9

"Accounts" include the right to payment for property sold, leased, licensed, or otherwise disposed of, or services rendered or to be rendered. Also included is a right to payment for the issuance of an insurance policy, the use of a credit or charge card, or winning a lottery. Excluded are rights to payments that are evidenced by another type of collateral, such as an instrument or chattel paper and those that arise out of a transaction that is not contained within the definition of an account. For example, a right to payment arising out of a loan transaction would, if not evidenced by an instrument or chattel paper, be a payment intangible, not an account. UCC § 9-102(a)(2).

Chattel Paper under Article 9

"Chattel paper" consists of one or more records that evidence both (i) a monetary obligation (e.g., a negotiable note) and (ii) a security interest in specific goods (e.g., a security agreement) or a lease of specific goods. UCC §9-102(a)(11). If the record is stored electronically, then the chattel paper is known as "electronic chattel paper." If the record is maintained on paper or another tangible medium, then the chattel paper is referred to as "tangible chattel paper." UCC § 9-102(a)(31), (78).

Commercial tort claims under Article 9

"Commercial tort claims" include tort claims possessed by an organization, or by an individual that arose in the course of the individual's business. Excluded are tort claims by an individual for personal injury or death. UCC § 9-102(a)(13).

Consumer Goods under Article 9

"Consumer goods" are those goods acquired primarily for personal, family, or household purposes. UCC § 9-102(a)(23).

Default

"Default" is not defined by Article 9. Instead, the parties to a security agreement are free to agree to the circumstances that give rise to a default, such as the debtor's transfer of the collateral without authorization. UCC § 9-601, cmt. 3. In the absence of such an agreement, the only event of default will be the failure of the obligor to make timely payments to the secured party.

Equipment Under Article 9

"Equipment," a catchall class, consists of goods that are not consumer goods, farm products, or inventory. It usually refers to goods that are used or bought for use primarily in a business, such as employees' desks or machinery used in manufacturing. UCC § 9-102(a)(33).

Farm Products Under Article 9

"Farm products" are goods that are crops or livestock and include supplies that are used or produced in farming. Excluded from farm products is standing timber for which there is not a contract to cut and remove. It is important to remember that for goods to be considered farm products, the debtor must be engaged in a farming operation. UCC § 9-102(a)(34).

General intangibles under Article 9

"General intangibles" is the residual category of personal property that is not included in other types of collateral. Included among items that are general intangibles are copyrights, things in action (e.g., legal claims), payment intangibles (i.e., a general intangible under which the account debtor's principal obligation is a monetary obligation), and software-not-part-of-goods. UCC § 9-102(a)(42), (61), incl. cmt. 5d.

Tangible Collateral

"Goods" encompasses anything that is "moveable at the time that a security interest attaches." Also included within the definition of goods are (i) fixtures, (ii) standing timber that is to be cut and removed pursuant to a contract, (iii)unborn animals, (iv) growing or unharvested grown crops, including crops produced on trees (e.g., apples), vines (e.g., grapes), or bushes (e.g., blueberries), and (v) manufactured homes. UCC § 9-102(a)(44).

Instruments under Article 9

"Instruments" encompass negotiable instruments, such as promissory notes and checks, as described in Article 3, and nonnegotiable instruments that evidence a right to the payment of a monetary obligation and are transferred in the ordinary course of business by delivery, such as a certificate of deposit from a bank. When coupled with evidence of a security interest, the two combined constitute chattel paper. UCC § 9-102(a)(47), (65).

Inventory Under Article 9

"Inventory" includes goods, other than farm products, that are held for sale or lease; are furnished under a service contract; or consist of raw materials, works in process, or materials used or consumed in a business. This term usually refers to goods that are consumed in a business (e.g., fuel used in operations) and includes items, even though not held for sale or lease, that are used up or consumed in a short period of time. UCC § 9-102(a)(48), inc. cmt. 4.a.

Investment Property under Article 9

"Investment property" includes both certificated and uncertificated securities, such as stock and bonds, as well as securities accounts, security entitlements, commodity accounts, and commodity contracts. UCC § 9-102(a)(49).

Agency issues in business associations

(1) identify the existence of agency relationships, (2) discuss whether the principal is subject to liability for the agent's actions, (3) articulate an agent's fiduciary duty to the principal and whether the agent has breached that duty, and (4) determine if or when an agency relationship has terminated.

"Must have" duties of Agent to Principal

(1) Duty of care to perform with reasonable diligence and skill; (2) Duty to provide information to the principal regarding all matters relating to the agency relationship; (3) Duty of loyalty to the principal and to work only for his benefit; (4) Duty of obedience to the principal; and (5) Duties not to usurp a business opportunity from the principal; not to take financial gain from the principal; to provide an accounting; and not to commingle the principal's property with that of a third party.

Spot Zoning

"Spot zoning" is arbitrary discrimination against or in favor of the owner of rezoned property. A rezoning that affects a small number of parcels of land (often a single parcel) in manner that is inconsistent with the zoning of the neighboring land and the comprehensive plan (if one exists) and that usually benefits the owner of the parcels to the detriment of the neighboring land constitutes impermissible "spot zoning." A similar change in the comprehensive plan that results in a change in the zoning for a particular parcel or only a few parcels is also susceptible to challenge as "spot zoning" due to the lack of uniformity in zoning similarly situated properties.

Negligence Per Se - Defenses

(1) Greater Risk of Harm, (2) incapacity, (3) reasonable care, (4) vagueness, (5) reasonable ignorance.

Types of Agent

(1) individual (2) employee (3) independent contractor (4) gratuitous agent (5) general and special agents (6) trustee (7) subagents

Requirements to be an agent

(1) Have minimal capacity (CAN be a minor); (2) Manifest assent and consent to act on the principal's behalf; and (3) Manifest assent to be subject to the principal's control.

Vertical Privity - Covenants Running with the Land

"Vertical privity" refers to the relationship between the original party and the successor to the property interest. The burden of the covenant runs if the successor holds an estate of the same duration as the original party. The benefit of the covenant runs if the successor holds some portion of the property interest held by the original party. Consequently, a covenant granted by the holder of a fee simple interest cannot be enforced against a successor interest that holds only a life estate, but the life estate holder can enforce a covenant given to the holder of the fee simple interest.

Change of Venue When Venue was Proper

"[F]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." This transfer may be ordered upon motion of a party, including the plaintiff, or by the court on its own initiative, but it is available only when the jurisdiction and venue of the court considering the issue are proper. The burden of proof with regard to the motion rests on the party seeking the transfer. § 1404(a).

Negligence Per Se Prima Facie

(1) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty; (2) The defendant violates the statute by failing to perform that duty; (3) The plaintiff is in the class of people intended to be protected by the statute; (4) The harm is of the type the statute was intended to protect against; and (5) The plaintiff's injuries were proximately caused by the defendant's violation of the statute.

Intrusion of Privacy Defenses

(1) Absolute and Qualified Privilege as long as no intrusion, (2) Consent.

Subagent contractual liability

(1) Agent: The agent is responsible to the principal for the subagent's conduct. Thus, the agent may be liable for a loss incurred by the principal as a consequence of the subagent's misconduct. (2) Principal: A principal is bound by the subagent's acts to the same extent as if the agent had undertaken the acts. Notice received by a subagent is treated as notice to the principal; knowledge possessed by the subagent is imputed to the principal. The principal is not obligated to compensate the subagent when the subagent and the agent create an agreement between them concerning compensation or other duties. (3) An agent serving co-principals: An agent has a duty of loyalty to the principal. In a situation in which an agent is serving more than one principal, and there is no substantial conflict among the principals' interests or their instructions to the agent, the agent may fulfill duties owed to all principals. If a conflict exists between the principals, then the agent may not work for the conflicting principals.

Agency Formalities

(1) An agent need not receive consideration (a gratuitous agent); and (2) A principal's appointment of an agent generally need not be in writing or comply with other formalities.

Common Violations of the Rule Against Perpetuities

(1) Class transfers - "survival beyond age 21" condition; (2) fertile octogenarian; (3) unborn spouse; (4) defeasible fee followed by an executory interest; (5) conditional passage of interest

Comparative Fault and Other Defenses

(1) Last clear chance no longer applies as a separate doctrine in comparative-fault jurisdictions. (2) Comparative fault will reduce the plaintiff's recovery even if the defendant's conduct is willful, wanton, or reckless, but it will not reduce the plaintiff's recovery for intentional torts.

Land Sales Exceptions to the Statute of Frauds

(1) Part performance, (2) full performance, (3) detrimental reliance, and (4) admission.

Reasonableness of Apparent Authority

(1) Past dealings between the principal and the agent of which the third party is aware; (2) Trade customs regarding how a similar transaction is normally accomplished; (3) Relevant industry standards; (4) The principal's written statements of authority; (5) Transactions that do not benefit the principal; or (6) Extraordinary or novel transactions for the principal or similar types of principals.

Promises Binding Without Consideration

(1) Promise to Pay a Debt Barred by the Statute of Limitations or Bankruptcy; (2) Promise to Perform a Voidable Duty; (3) Promise to Pay Benefits Received—Material Benefit Rule; (4) Promissory Estoppel

When Parol Evidence Rule is Inapplicable

(1) Raising a Defense to the formation of a contract, (2) establishing a defense to the formation of a contract, (3) separate deal, (4) condition precedent, (5) ambiguity and interpretation, (6) subsequent agreement, (7) UCC exceptions

Termination of Easements

(1) Release, (2) Merger, (3) Severance, (4) Abandonment, (5) End of necessity, destruction, condemnation, (6) Prescription, (7) Estoppel, (8) Bona Fide Purchaser

Termination of Actual Authority

(1) The principal's revocation; (2) The principal's agreement with the agent; (3) A change of circumstances; (4) The passage of time; (5) The principal's death or suspension of powers; (6) The agent's death or suspension of powers; (7) The principal's loss of capacity; or (8) A statutorily mandated termination.

Exceptions to Restitutionary Damages

(1) Willful Breach, (2) liquidate damages clause, (3) in a sale of goods, payment by the defaulting buyer.

Requirements of Real Covenant

(1) Writing, (2) Intent, (3) Touch and Concern, (4) Notice, (5) Privity. The requirements are necessary for both the benefit and the burden of a covenant to run with the land, unless otherwise indicated.

Intentional Misrepresentation

(1) false representation (2) scienter (3) intent to induce reliance (4) causation (5) justifiable reliance (6) damages

Duties of Landlord

(1) give possession; (2) duty to repair; (3) warranty of habitability; (4) covenant of quiet enjoyment; (5) security deposit.

Types of Spousal Maintenance

(1) lump sum, (2) permanent, (3) limited duration, (4) rehabilitative, (5) reimbursement, (6) palimony

Property-Related Issues NOT under the Law of the Situs

(1) mortgage note (2) foreclosure-related rights

Types of class action

(1) risk of prejudice, (2) final equitable relief, (3) common legal or factual questions.

Collateral Estoppel Requirements

(1) same issue, (2) actually litigated, (3) final, valid judgment, (4) essential to the judgment.

Four Methods of Tender

(1) seller's place of business, (2) shipment contract, (3) destination contract, (4) goods in the hands of a bailee

Identifying an agent

(1) the types of agents listed below in fact patterns and (2) persons who work on behalf of, and are subject to the control of, another person/principal.

Principal's Liability to Third Party for Agent's Conduct

(1) vicarious liability (respondeat superior or agent's apparent authority) and (2) direct liability (actual authority, negligence in control, non-delegable duties)

Implied Authority by Acquiescence

1) A principal's acceptance of the agent's acts as they occur; or (2) The principal's failure to object to the unauthorized actions of the agent that: (a) Affirm the agent's belief that those actions further the principal's objectives; and (b) Support the agent's perceived authority to act in the future. Thus, it is imperative that a principal stop, correct, and clarify any unacceptable act performed by an agent when the act takes place, so as not to grant implied authority as to the future actions of the agent.

Acceptance of Bilateral Contract

A bilateral contract is one in which a promise by one party is exchanged for a promise by the other. The exchange of promises is enough to render them both enforceable. An offer requiring a promise to accept can be accepted either with a return promise or by starting performance. Commencement of performance of a bilateral contract operates as a promise to render complete performance. Restatement (Second) of Contracts § 62.

Questions to ask in land use problems

1. Was an easement created? 2. If so, what is the scope of the easement? 3. Was the easement terminated?

Negligence - Breach of Duty generally

A breach of duty occurs when the defendant departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur. There are two approaches for determining negligent conduct (breach of the general standard of care).

Deposit Account under Article 9

A "deposit account" includes a savings, passbook, time, or demand account maintained with a bank. Excluded are investment property and accounts evidenced by instruments, such as certificates of deposit. UCC § 9-102(a)(29). Article 9 does not apply to a deposit account that is pledged as collateral in a consumer transaction, but such an account that is received as proceeds is subject to the rules regarding proceeds. UCC § 9-109(d)(13).

Document under Article 9

A "document" refers to a document of title, which confers on the holder ownership rights in goods held by a bailee, such as a bill of lading, transport document, a dock warrant, a dock receipt, a warehouse receipt, and an order for the delivery of goods. UCC §§ 1-201(16), 9-102(a)(30).

Frozen Embryos

A "frozen embryo" is the result of in vitro fertilization that is cryogenically preserved. Issues concerning ownership and parentage are complex and continue to be unresolved. Additional problems surface when one of the individuals who provided the egg or sperm dies, or the individuals get divorced. Absent an agreement, the decision as to whether or not transplantation will take place is made by weighing the interests of the parties. Ultimately, resolution of these issues may turn on whether the embryo is classified as a person or as property.

General Contract Offers

A "general offer" is an offer made to a large number of people, generally through an advertisement. A general offer can be revoked only by notice that is given at least the same level of publicity as the offer. So long as the appropriate level of publicity is met, the revocation will be effective even if a potential offeree does not learn of the revocation and acts in reliance on the offer. Restatement (Second) of Contracts § 46. Note that if a person has actual knowledge of the intent to revoke but did not see the notice, then the revocation will be effective as to such person.

Letter-of-credit right under Article 9

A "letter-of-credit right" is a right to payment or performance under a letter of credit, even though the beneficiary has not demanded—nor is the time ripe for —payment or performance. UCC § 9-102(a)(51).

Satisfaction of Accord

A "satisfaction" is the performance of the accord agreement; it will discharge both the original contract and the accord contract. However, there is no satisfaction until performance, and the original contract is not discharged until satisfaction is complete. Therefore, if an accord is breached by the debtor, the creditor can sue either on the original contract or under the accord agreement.

Perfection by PMSI in consumer goods

A PMSI in consumer goods is automatically perfected upon attachment. A secured party does not need to file a financing statement or have possession to have a perfected PMSI in consumer goods. A PMSI in other types of goods (e.g., inventory, equipment) or in automobiles is not automatically perfected. UCC § 9-309(1).

PMSI in consumer goods and priority

A PMSI in consumer goods is automatically perfected. Filing is not required. If a PMSI in consumer goods is not filed, and the consumer buyer does not know of the PMSI, then he will take free of the security interest. If the party holding the PMSI in consumer goods does in fact file, then his security interest will be good even against a consumer buyer. UCC § 9-320.

PMSI in Fixtures

A PMSI in fixtures has priority over a prior interest in the real property with which the fixtures are associated when: i) The debtor has an interest of record in the real property (e.g., is an owner) or is in possession of the real property (e.g., is a lessee); and ii) The security interest is perfected by a fixture filing before the goods become fixtures or within 20 days thereafter.

PMSI in Goods

A PMSI in goods exists when: i) A secured party gave value (e.g., made a loan) to the debtor and the debtor incurred an obligation to enable the debtor to acquire rights in or use of the goods, and the value given was so used; or ii) A secured party sold goods to the debtor, and the debtor incurs an obligation to pay the secured party all or part of the purchase price (i.e., a sale of goods on credit). The amount of the obligation can include expenses incurred in connection with acquiring rights in the collateral, sales taxes, duties, finance charges, interest, freight charges, administrative charges, expenses of collection and enforcement, attorney's fees, and similar obligations. UCC § 9-103, cmt. 3.

PMSI in Software

A PMSI in software exists only when the debtor acquired his interest in software in an integrated transaction in which the debtor also acquired an interest in goods (e.g., a computer), and the debtor acquired that interest in the software for the principal purpose of using the software in the goods. The security interest in the software must also secure an obligation with respect to the goods, and the secured party must hold a PMSI in the goods. UCC § 9-103(b), (c).

Purchase Money Security Interest

A PMSI is a special type of security interest that may be accorded special rules with respect to perfection and priority. A PMSI may exist only with respect to two types of collateral—goods (including fixtures) and software. UCC § 9-103. As the name implies, a PMSI must be an attached security interest; it must meet the three requirements of value, rights, and agreement

Buyer vs. secured party with an unperfected security interest

A buyer, other than a secured party, of collateral that is goods, tangible chattel paper, tangible documents or a security certificate takes free of an unperfected security interest in the same collateral if the buyer: i) Gives value; and ii) Receives delivery of the collateral; iii) Without knowledge of the existing security interest. UCC § 9-317(b). If the collateral is intangible collateral, such as accounts, or a general intangible, such as a copyright, then there is no requirement that the buyer receive delivery of the item. UCC § 9-317(b), (d).

Bailment Liability

A bailor may be liable for his own negligent actions but generally is not vicariously liable for the tortious acts of his bailee, except for those limited situations described above, such as bailments involving automobiles or parents and children.

Breach of Deed Covenants

A breach of the covenants of seisin and right to convey arises when the grantor is not the owner of the described estate (e.g., another party owns a portion of the property). A breach of the covenant against encumbrances occurs when a property is encumbered by a mortgage, lease, easement, or covenant not specified in the deed. Even if the deed is silent, some states do not recognize a breach if the grantee had knowledge of the encumbrance, if it was visible, or if it benefitted the land. Most states do not find a breach from a violation of a zoning restriction or housing code. A breach of a future covenant occurs when the grantee has been sued or evicted by someone with a valid superior interest. The grantor is not required to defend against a third party's wrongful claim or eviction.

Recovery for Breach of Deed Covenants

A buyer can recover for breach of the covenant against encumbrances the lesser of the difference in value between title with and without the defect, or the cost of removing the encumbrance. To recover for the covenants of enjoyment or warranty, the grantee must notify the grantor of the interference, and the grantor must refuse to defend the title. Recovery is the lesser of the purchase price or the cost of defending the defective title. Recovery for the covenants of seisin, right to convey, or further assurances is the lesser of the purchase price or the cost of perfecting title.

Buyer's right to inspect

A buyer has a right to inspect goods that are tendered, delivered, or identified to the contract for sale, unless the contract provides otherwise. A buyer's right to inspect is a condition to payment. An inspection may occur at any reasonable time and place and in any reasonable manner, even when the goods are held under reservation. However, the parties can agree that inspection can occur in a particular form, time, or place. If the seller is required or authorized to send the goods to the buyer, then the inspection may be made after their arrival.

Buyers in the Ordinary Course of Business

A buyer in the ordinary course of business (BOCB) takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence. A BOCB is a person who: i) Buys goods (not including farm products); ii) In the ordinary course of business; iii) From a merchant who is in the business of selling goods of that kind; iv) In good faith; and v) Without knowledge that the sale violates the rights of another in the same goods. UCC §§ 1-201(9), 9-320. A buyer does not receive BOCB status if the merchant is a pawnbroker. UCC § 1-209, incl. cmt. 9.

Buyer Incidental and Consequential Damages under UCC

A buyer may recover incidental and consequential damages resulting from the seller's breach. Incidental damages are damages that are incidental to the seller's failure to perform, such as the costs of warehousing, transportation, inspection, etc. Consequential damages are any losses resulting from general or particular requirements and needs of which the seller, at the time of contracting, had reason to know and which could not be reasonably prevented by purchasing substitute goods or otherwise. Consequential damages may be limited or excluded unless such limitation or exclusion would be unconscionable. UCC § 2-719(3).

Remedies for unmarketable Title

A buyer may rescind and recover out-of-pocket costs and earnest money payments, sue for breach, or bring an action for specific performance with an abatement of the purchase price (e.g., a price adjustment to compensate the buyer for the defect), but she usually cannot do so until the date of closing.

Revocation of Acceptance Under UCC

A buyer may revoke an acceptance of goods if the nonconformitysubstantially impairs their value to the buyer and: (1) The buyer accepted the goods on the reasonable belief that the seller would cure the nonconformity, but the seller has failed to do so; or (2) The buyer accepted the goods without discovery of the nonconformity, and such acceptance was reasonably induced either by the difficulty of discovering the nonconformity before acceptance or because the seller gave assurances that the goods were conforming. The buyer must inform the seller of its decision to revoke within a reasonable time after the nonconformity is discovered or should have been discovered by the buyer. Revocation of acceptance must occur before any substantial change in the condition of the goods not caused by the defect. UCC §2-608.

Buyer vs. Secured Party with a perfected security interest

A buyer of collateral subject to a perfected security interest generally takes the collateral subject to that interest, unless the secured party has authorized its sale free of the security interest. UCC §§ 9-315(a); 9-317(b), (d); 9-320, cmt. 6.

Buyer not in the ordinary course of business - future advances

A buyer of goods not in the ordinary course takes free of a security interest to the extent that it secures an advance made after the earlier of: i) The time the secured party acquires knowledge of the buyer's purchase; or ii) 45 days after purchase. The buyer takes subject to the security interest if the advance is made pursuant to a commitment entered into without knowledge of the buyer's purchases and before the expiration of the 45-day period. UCC § 9-323(d, e).

Withdrawal of Refusal to Accept Under UCC

A buyer's original refusal to accept may be withdrawn by a later acceptance if the seller indicates that he is holding the tender open. UCC § 2-601. However, if the buyer attempts to accept after his original rejection caused the seller to arrange for other disposition of the goods, then the buyer is liable for any ensuing damage. The buyer is liable even if the seller chooses to treat his action as acceptance rather than conversion. UCC § 2-601 cmt.2.

Concurrent estate - third party rents

A co-tenant must account to other co-tenants for rent received from third parties, but she can deduct operating expenses when calculating net proceeds. Third?party rents are divided based on the ownership interest of each tenant.

Defamation - Internet Service Providers

A federal statute provides that Internet service providers are not publishers for the purpose of defamation law.

Trial by the court

A case will be tried by the court without a jury if no right to a jury trial exists (or if it has been waived). The court is the finder of fact; it must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of evidence or may appear in an opinion or a memorandum of decision filed by the court. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 (motions against the complaint) or 56 (summary judgment) or, unless the rules provide otherwise, on any other motion. The court may also consolidate common actions or separate different claims when called for. On appeal, a court's finding of facts can be set aside only if clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility. Rule 52.

Ceremonial marriage

A ceremonial or statutory marriage requires that the parties obtain a license to get married. The couple must meet several requirements to obtain this license: (1) age, (2) waiting period, (3) premarital medical testing, (4) expiration date.

Conveyance of real property to charitable trusts

A charitable trust is one with a stated charitable purpose made to benefit the community at large or a particular segment of the community. A differentiating factor between a private trust and a charitable trust is the beneficiaries. As noted above, a private trust must have identifiable beneficiaries, whereas in a charitable trust, the beneficiaries must be reasonably numerous and unidentifiable. Another important distinction is that the Rule Against Perpetuities does not apply to trusts that are entirely charitable. Moreover, if a charitable trust can no longer serve the purpose for which it was created, the court can apply the doctrine of cy pres and redirect the trust to a similar charity or purpose. The attorney general of the state also has the power to enforce a charitable trust but not a private trust.

Child's right to consent to medical care

A child's rights regarding medical care vary depending on the age of the child and the medical procedure. Children over a certain age may be able to provide the consent needed for treatment. Otherwise, parental consent is almost always necessary before a child can receive emergency medical treatment, even though the state may override the parent's failure to consent when the child's life is at risk. Nevertheless, in nonemergency situations, minors are allowed to consent to abortions, receive treatment for sexually transmitted diseases, and obtain birth control without the consent of their parents.

Termination of Child Custody

A child-custody order terminates upon the custodial parent's death or upon the child reaching the age of majority. In cases of death, the surviving parent generally receives custody of the child.

Intervention and Subject Matter Jurisdiction

A claim of an intervenor must be supported by its own jurisdictional basis. Pursuant to § 1367(b), supplemental jurisdiction does not apply to the claims of a person seeking to intervene under Rule 24 (either as of right or permissively) in a case based exclusively on diversity jurisdiction if the exercise of jurisdiction would be inconsistent with the requirements of diversity jurisdiction.

Class action and subject matter jurisdiction

A class action must also satisfy federal subject matter jurisdiction requirements. A class action can invoke federal question jurisdiction or diversity jurisdiction.

Concurrent Estate Operating Expenses

A co-tenant can collect contribution from the other co-tenants for paying more than his portion of necessary or beneficially spent operating expenses (e.g., taxes or mortgage interest). Note that a co-tenant in sole possession can collect only for the amount that exceeds the rental value of the property.

Concurrent Estate Repairs and Improvements

A co-tenant does not have a right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary. However, the majority view is that contribution for necessary repairs can be compelled in actions for accounting or partition. A co-tenant may, in some jurisdictions, maintain a separate action for contribution, as long as the other co-tenants have been notified of the need for the repair. Similarly, except in actions for accounting or partition, a co-tenant does not have a right to reimbursement for improvements made to the property. As noted, when a third party is occupying the property, the co-tenant who collects rent from the third party can subtract expenses for necessary repairs from the rent received before sharing the rent with the other co-tenants.

Fiduciary Obligations in Concurrent Estate

A co-tenant does not have a right to be reimbursed by other co-tenants for repairs made to the property, even when those repairs are necessary. However, the majority view is that contribution for necessary repairs can be compelled in actions for accounting or partition. A co-tenant may, in some jurisdictions, maintain a separate action for contribution, as long as the other co-tenants have been notified of the need for the repair. Similarly, except in actions for accounting or partition, a co-tenant does not have a right to reimbursement for improvements made to the property. As noted, when a third party is occupying the property, the co-tenant who collects rent from the third party can subtract expenses for necessary repairs from the rent received before sharing the rent with the other co-tenants.

Concurrent Estate - natural resources

A co-tenant is entitled to the land's natural resources (e.g., timber, minerals, oil, gas) in proportion to her share.

Common-Interest Ownership Community Duties

A common-interest ownership community has the following duties to its members: (1) To use ordinary care and prudence in managing the property and financial affairs of the community that are subject to its control; (2) To treat members fairly; (3) To act reasonably in the exercise of its discretionary powers, including rulemaking, enforcement, and design-control powers; and (4) To provide members with reasonable access to information about the association, the common property, and the financial affairs of the association. A change in an association rule triggered by changed circumstances may not be applied retroactively if it would be impractical or cause substantial hardship to do so. A member who challenges an action of the association has the burden of proving a breach of duty by the association. In addition, unless the breach involves ultra vires action by the association, the member must prove that the breach has caused or threatens to cause injury to the member individually, or to the interests of the community. Restatement (Third) of Property: Servitudes § 6.13.

Common-Interest Ownership Communities

A common-interest ownership community is a real estate development in which individually owned lots or units are burdened by a covenant that imposes an obligation to pay dues to an association that: (1) Provides services or facilities to the common property or to the individually owned property, or (2) Enforces other covenants or easements that burden the property in the development or neighborhood. The dues must be required regardless of use of the services or facilities or withdrawal from the association. Restatement (Third) of Property: Servitudes § 6.2.

Powers of Common-Interest Ownership Community Generally

A common-interest ownership community, typically acting through its board, has the powers reasonably necessary to manage the common property, administer the covenants, and carry out other functions set out in the governing documents or granted by statute. Restatement (Third) of Property: Servitudes § 6.4. Included are the following powers to the extent not limited or prohibited by the governing documents or statute.

Complaint - Subject matter jurisdiction

A complaint in federal court must contain an allegation of the subject matter jurisdiction of the court, unless the court already has jurisdiction and the claim needs no new jurisdictional support.

Complaint filing and service

A complaint will generally be filed before service on the defendant(s), which must then generally occur within 90 days of filing. Rule 4(m).

Compulsory Counterclaims and Amount in Controversy

A compulsory counterclaim, which is generally a claim arising out of the same transaction or occurrence as the plaintiff's claim, does not have to meet the statutory jurisdictional amount requirement to be considered by the court. See Rule 13(a). The court will have supplemental jurisdiction over the compulsory counterclaim.

Concurrent Estates

A concurrent estate (or co-tenancy) is ownership or possession of real property by two or more persons simultaneously. The most common concurrent estates are tenancy in common, joint tenancy, and tenancy by the entirety.

Construction Mortgage priority

A construction mortgage (i.e., a mortgage that secures an obligation incurred for the construction of an improvement on land, including the cost of acquiring the land, and that indicates it is a construction mortgage in the real property records) has priority over a subsequent security interest in a fixture, including a PMSI in a fixture. The construction mortgage must be recorded before the goods become fixtures, and it covers only goods that become fixtures before completion of the construction. UCC § 9-334(h).

Consumer buyer and priority

A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless prior to the purchase, the secured party filed a financing statement covering the goods. A consumer buyer is a person who: i) Buys consumer goods for value; ii) For his own personal, family, or household use; iii) From a consumer seller; and iv) Without knowledge of the security interest. This is often referred to as the "garage sale" rule, because that type of sale would qualify. UCC § 9-320(b).

Unconscionability

A contract (or part of a contract) is unconscionable when it is so unfair to one party that no reasonable person in the position of the parties would have agreed to it. The contract or part of the contract at issue must have been offensive at the time it was made. Unconscionability may also be applied to prevent unfair surprise. Restatement (Second) of Contracts § 208.

Intoxication and contract

A contract entered into while intoxicated due to alcohol or drugs is voidable by the intoxicated party if that person was unable to understand the nature and consequences of the transaction, and the other party had reason to know of the intoxication. The intoxicated party must act promptly to disaffirm the contract and is required to return any value received, if possible. Generally, the intoxicated party may be liable in quasi-contract for the fair value of the goods or services furnished. Restatement (Second) of Contracts § 16.

Sale of Fixtures

A contract for the sale of a structure or its materials is a contract for the sale of goods governed by the UCC when the structure or material is to be severed by the seller. A contract for the sale of other things that are attached to real property and are capable of severance without material harm to the real property is a contract for the sale of goods regardless of whether the seller or buyer effects the severance. UCC § 2-107(1), (2).

Contract Missing Terms under Common Law

A contract may still be formed when a term is missing, if it appears that the parties intended to create a contract. The court may supply the missing term because there is a presumption that the parties intended to include a reasonable term.

Corporations in Diversity Jurisdiction

A corporation may be a party to a diversity action. Under § 1332(c), for purposes of diversity jurisdiction, "a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business." Thus, corporations, unlike individuals, may be citizens of more than one state for diversity purposes, and diversity jurisdiction will be destroyed if any opposing party is a citizen of any of the states in which the corporation has citizenship. A pleader does not have the option of alleging that a corporation's citizenship is either its state of incorporation or the state where the principal place of business is located; both states must be listed in the pleading.

Counterclaims and Amount in Controversy

A counterclaim by a defendant against a plaintiff is not counted for the purposes of determining whether the plaintiff has met the statutory jurisdictional amount. Under some circumstances, though, the counterclaim itself will need to meet the statutory jurisdictional amount in order to be considered by the court.

Supplemental Jurisdiction to Diversity Counterclaims

A counterclaim may be asserted by a defendant against a plaintiff without satisfying the jurisdictional amount when the counterclaim is compulsory. A permissive counterclaim does not qualify for supplementary jurisdiction and therefore must satisfy the jurisdictional amount and the rule of complete diversity.

Parol Evidence Rule Exception - Course of Dealing

A course of dealing is a sequence of conduct concerning previous transactions between the parties that can reasonably establish a common basis of understanding for interpreting their conduct. UCC § 1-303(b).

Parol Evidence Rule Exception - Course of Performance

A course of performance is a sequence of conduct that is relevant to understanding an agreement between the parties if: (1) the agreement involves repeated occasions for performance by a party, and (2) the other party accepts performance without objection and with knowledge of the course of performance. UCC § 1-303(a). A course of performance is relevant to show a waiver or modification of any term inconsistent with the course of performance. UCC § 1-303(f).

Child Custody - Significant-Connection Jurisdiction

A court can enter or modify an order if (1) no other state has or accepts home-state jurisdiction, (2) the child and at least one parent have a significant connection with the state, and (3) there is substantial evidence in the state concerning the child's care, protection, training, and personal relationships.

Supplemental Pleadings

A court has discretion under Rule 15(d) to permit supplemental pleadings that describe events occurring after the filing of an earlier pleading. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may also order that the opposing party respond to the supplemental pleading within a specified time. A supplemental pleading does not supersede an original pleading.

Initial Child Custody Determination

A court has subject-matter jurisdiction to preside over custody hearings and either enter or modify custody or visitation orders if the state is: (1) The child's home state and has been the home state for a period of six consecutive months or since birth, if the child is less than six months old; or (2) Was the child's home state in the past six months, and the child is absent from the state, but one of the parents (or guardians) continues to live in the state.

Procedure for judicial notice of fact

A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request of a party or by the court's own initiative. Note, however, that a court may not take judicial notice against a criminal defendant for the first time on appeal. U.S. v. Jones, 580 F.2d 219 (6th Cir. 1978). If a party makes a request and the court is supplied with the necessary information, then the court must take notice of the fact. Fed. R. Evid. 201(c), (d).

Class Action Certification Appeal

A court of appeals has the discretion to permit an appeal from a district court order granting or denying class action certification. The petition for permission to appeal must be filed with the circuit clerk within 14 days after the order is entered. If the appeal is permitted, it does not stay proceedings in the district court unless the district court or the court of appeals so orders. Rule 23(f).

Cross-claims

A cross-claim is a claim made against a coparty, as when one defendant makes a claim against another defendant. Under Rule 13(g), a pleading may state as a cross-claim any claim by one party against a coparty that arises out of the same transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The cross-claim may include a claim that the coparty is liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Cross-Claims and subject matter jurisdiction

A cross-claim must fall within the subject matter jurisdiction of the federal court. This is generally not a problem because, by definition, a cross-claim must arise out of the same transaction or occurrence as the subject matter of the original action or of a counterclaim or relate to the property at issue, and therefore it would fall under the court's supplemental jurisdiction.

Debtor

A debtor is a person who has an interest, other than a security interest or other lien, in the collateral, such as the sole owner of the collateral. Although the debtor is usually also the obligor, the debtor need not be. UCC § 9-102(a)(28).

Debtor Right to Accounting

A debtor may obtain information from a secured party about the secured obligation and the collateral in which a secured party may claim a security interest. The debtor may request an accounting from the secured party. In addition, the debtor may submit a list of collateral and a statement of the aggregate amount of unpaid secured obligations, which the secured party may approve or correct. Generally, the secured party has 14 days to respond after receiving the debtor's request. UCC § 9-210.

Redemption of Collateral

A debtor, secondary obligor, or any other secured party has the right to redeem collateral. UCC § 9-623. To effect a redemption, the redeemer must fulfill all obligations secured by the collateral (e.g., payment of monetary obligations currently due, including obligations resulting from the default) and reasonable expenses, including attorney's fees, incurred by the secured party in retaking the collateral or preparing for its disposition. UCC § 9-623(b). If the security agreement contains an acceleration clause, then the redeemer must tender the entire balance of the secured obligation. UCC § 9-623, cmt. 2.

Wrongful Death generally

A decedent's spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent's death under wrongful?death actions created by state statutes. Under typical statutes, the recoverable damages include the loss of support (income) as a result of the decedent's death, as well as the loss of companionship, society, and affection experienced by the surviving family members, but not pain and suffering. Recovery, however, is limited to what the deceased would have recovered had he lived. Additionally, the decedent's creditors have no right to institute a claim against the amount awarded.

Declaratory Judgment

A declaratory judgment is a ruling in which the court tells the parties to a dispute what their rights, responsibilities, or obligations are, without awarding damages or ordering the parties to do (or refrain from doing) anything. Parties generally seek a declaratory judgment to resolve uncertainty and avoid the possibility of a future lawsuit. Under the federal Declaratory Judgment Act, 28 U.S.C. § 2201, a federal court may award declaratory relief in actions within the court's original jurisdiction, with the exception of certain actions concerning taxes, bankruptcy, free trade, or drug patents. Most states have enacted statutes permitting their courts to issue declaratory judgments.

Delivery and Recording of Deed generally

A deed is the legal instrument that transfers the ownership of real property. To transfer a real property interest, the grantor must demonstrate the intent to make a present transfer of the interest (e.g., delivery of the deed), and the grantee must accept the interest. In addition, pursuant to the Statute of Frauds, the transfer of a real property interest must be evidenced by a writing (e.g., a valid deed). Finally, the grantee may be able to protect his property interest against others' claims by recording the deed.

Equal-Dignities Rule - Signature

A deed is valid if an agent with authority signs only the principal's name. A deed is not valid at law if an agent with authority signs only her own name, but the deed may be enforced in equity as between the parties and subsequent purchasers with notice of the existence of the agency.

Forgery of the grantor's signature in deed

A deed that contains a forged grantor's signature is void, even if relied upon by a bona fide purchaser.

Strict Liability - Abnormally Dangerous

A defendant engaged in an abnormally dangerous activity will be held strictly liable—without any proof of negligence—for personal injuries and property damage caused by the activity, regardless of precautions taken to prevent the harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 (2010).

Forfeiture restraint on real property

A forfeiture restraint effects the loss of property (i.e., the property is forfeited) if the interest owner attempts to transfer his interest. Such a restraint on a future interest or a life estate can be valid.

Conversion generally

A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff's damages are the chattel's full value at the time of the conversion. Only personal property and intangibles that have been reduced to physical form (e.g., a promissory note) can be converted.

Intentional Infliction of Emotional Distress generally

A defendant is liable for intentionally or recklessly acting with extreme and outrageous conduct that causes the plaintiff severe emotional distress.

Negligence - Majority Foreseeability of Harm

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. The type of harm must be foreseeable, though the extent of harm need not be foreseeable. A defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious, within the scope of liability of the defendant's conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29.

Trespass to Chattels generally

A defendant is liable for trespass to chattels (i.e., tangible personal property) if he intentionally interferes with the plaintiff's right of possession by either: (1) Dispossessing the plaintiff of the chattel; or (2) Using or intermeddling with the plaintiff's chattel. Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Negligence - Intended Beneficiaries

A defendant is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction.

Battery Prima Facie

A defendant is liable to the plaintiff for battery when he: (1) Causes a harmful or offensive contact with the person of another; and (2) Acts with the intent to cause such contact or the apprehension of such contact.

In Personam Jurisdiction - Defendant's Consent

A defendant may agree in advance by contract to submit to the jurisdiction of the court if a lawsuit is brought by the plaintiff. Such contractual consent will not be effective if the court determines that the contract was a contract of adhesion. A defendant may also stipulate to personal jurisdiction once an action is brought. Petrowski v. Hawkeye-Security Ins. Co., 350 U.S. 495 (1956). Consent is given when a person authorizes an agent to accept service of process. Usually, a state will require nonresidents doing business in a heavily regulated industry to appoint an agent. A defendant may be deemed to have consented through its conduct, such as filing a counterclaim or driving a vehicle within a state. Traditionally, voluntary appearance of the defendant in court automatically subjected the defendant to personal jurisdiction, unless he was present with the express purpose to object to personal jurisdiction. This was called a "special appearance" and was distinguished from a general appearance to litigate the merits of the case. The federal courts and many state courts have abolished this distinction and no longer require a "special appearance" to allow a defendant to object to personal jurisdiction. Under the federal rule, appearance alone does not waive the right to object to personal jurisdiction. The objection is waived if the personal jurisdiction objection is not raised in the first of (i) a Rule 12 motion, if raised before the answer; or (ii) in the answer itself. Fed. R. Civ. P 12(h)(1).

Interference With A Prospective Economic Advantage

A defendant may be liable for intentionally interfering with a prospective business relationship or economic benefit between the plaintiff and a third party, even in the absence of an existing contract. The other elements remain the same, but without an existing contract, some jurisdictions require that the defendant's conduct be wrongful, either "independently tortious" (e.g., consisting of fraud or assault) or a violation of federal or state law. Other jurisdictions and the Second Restatement engage in a more open-ended balancing process to decide whether the defendant's conduct is improper. Absent proof of wrongful conduct (e.g., defamation), a defendant who is the business competitor of the plaintiff will not be held liable for encouraging the third party to switch his business to the defendant.

IIED - Third-Party Victims

A defendant may be liable to a third-party victim if he intentionally or recklessly causes severe emotional distress to: (1) A member of the victim's immediate family who contemporaneously perceives the defendant's conduct, whether or not such distress results in bodily injury; or (2) Any other bystander who contemporaneously perceives the conduct, if the distress results in bodily injury. If the defendant's design or purpose was to cause severe distress to the third-party victim, the victim need not have contemporaneously perceived the conduct.

Negligence - Duty by Relationship

A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

Intentional Interference with Contract - Justification

A defendant's interference usually will be found to be justified if it is not motivated by an improper purpose. Some courts require the plaintiff to prove that the breach was induced by an improper purpose. Considerations of health, safety, morals, or ending poor labor conditions are proper purposes. For example, a defendant who tries to convince a U.S. clothing store to stop buying fabrics from a foreign textile manufacturer known for its inhumane labor conditions will not be liable for interference with a contract. A defendant might claim that the interference is within the privilege of fair competition. If the contract is terminable at will, the defendant's attempt to induce a third party to breach its contract with the plaintiff can be justified if the defendant is a business competitor of the third party who is in an existing contractual relationship with the plaintiff.

Reasonably Prudent Person - Physical Characteristics

A defendant's particular physical characteristics (e.g., blindness) are taken into account and the reasonableness of the conduct of a defendant with a physical disability is determined based upon a reasonably careful person with the same disability. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §11 (2010). For example, a blind pedestrian must act as any other reasonable blind person would act under the circumstances.

Procedure for impleader

A defending party—including a plaintiff against whom a counterclaim has been asserted—may assert a third-party claim at any time after the complaint is filed. The defending party, referred to for impleader purposes as the "third-party plaintiff," must serve a summons and third-party complaint on the nonparty (third-party defendant). The third-party plaintiff must obtain the court's permission if he files more than 14 days after service of his original answer. Rule 14(a)(1). There are some states, however, that do not permit a defendant to implead his own insurance company unless the company has denied coverage. The third-party defendant may (and in some cases must) assert defenses, counterclaims, and cross-claims against any of the parties as appropriate under the Rules and may also implead another nonparty who is or may be liable to the third-party defendant for the claim on which he was impleaded. Rule 14(a)(2).

Conducting Oral Deposition

A deposition must be conducted before an officer who is appointed or designated under Rule 28 to administer oaths and take testimony, unless the parties agree otherwise. By stipulation of the parties or by court order, a deposition may be taken by telephonic or other remote electronic means. i) Examination of the deponent may proceed as permitted at trial under the Federal Rules of Evidence, except that cross-examination is not limited to matters raised on direct examination. Rule 30(c). ii) The deponent is to be placed under oath, and the testimony is to be recorded either by stenographic or electronic means. Rule 30(b). iii) Any objections are to be made on the record, but the examination still proceeds. The testimony is taken subject to any objection. Rule30(c)(2). iv) A person may instruct the deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion to terminate or limit the examination. Rule 30(c)(2). Under Rule 30(d)(1), a deposition is limited to one day of seven hours, unless the parties agree otherwise or the court orders otherwise. The court must allow additional time if needed to fairly examine the deponent, or if the deponent, another person, or any other circumstance impedes or delays the deposition.

Ademption of real property

A devise of real property may fail (or be "adeemed") because the testator no longer owns the property upon death (i.e., because the property was sold, destroyed, or given away before death). If the testator gives the property to the intended beneficiary while the testator is still alive, then the devise is adeemed by satisfaction. Once a devise is adeemed, the beneficiary named in the will takes nothing.

Restraints on Alienation - Legal Interests

A direct restraint on alienation is a restriction on transferring property and may be void as against public policy. If the restraint is void, then the restraint is rejected, and the property can be alienated in violation of the void restraint. If the restraint is valid, then any attempt to alienate the property in violation of the restraint is null and void. Restatement (Second) of Property; Donative Transfers § 4.1.

Disabling restraint on real property

A disabling restraint is a prohibition on the transfer of the property interest by its owner. Such a restraint is always void.

Strict Product Liability - Contract Disclaimer

A disclaimer or limitation of remedies or other contractual exculpation (i.e., waiver) by a product seller or other distributor does not generally bar or reduce an otherwise valid products-liability claim for personal injury.

Warranties and disposition of collateral

A disposition of collateral includes warranties of title, possession, and quiet enjoyment that generally accompany the disposition of property of the same type as the collateral. These warranties may be disclaimed or modified. UCC § 9-610(d), (e), incl. cmt. 11.

Supplemental Jurisdiction

A district court with jurisdiction over a claim may exercise "supplemental jurisdiction" over additional claims over which the court would not independently have subject matter jurisdiction (usually state law claims against a nondiverse defendant) but that are so related to the original claim that the additional claims form part of the same case or controversy under Article III of the U.S. Constitution. § 1367(a). In judging whether the claims are related, the test is whether they arise out of a "common nucleus of operative fact" such that all claims should be tried together in a single judicial proceeding. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).

Review on appeal of a district court's factual findings

A district court's findings of fact, including a master's findings that have been adopted by the court, may not be set aside unless "clearly erroneous." The appellate court must give due regard to the trial court's opportunity to judge the witnesses' credibility. Rule 52(a). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, based on the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed. United States v. U.S. Gypsum Co., 333 U.S. 364 (1948). A party may challenge the sufficiency of the evidence supporting such findings on appeal even though the party took no action in the trial court with regard to them. Rule 52(a)(5).

Installment Contract Tender under Common Law

A divisible or installment contract is one in which the obligations imposed on the contracting parties can be separated into corresponding pairs of part performances such that each pair constitutes agreed equivalents. Recovery is limited to the performance promised for the corresponding portion of the contract that has been performed. Damages may be recoverable for breach of other obligations under other portions of the contract.

Future Interests in Real Property

A future interest is an interest in presently existing property or in a gift or trust, which may commence in use, possession, or enjoyment sometime in the future.

Family law and res judicata

A divorce decree must generally be given a preclusive effect as long as the court had jurisdiction, which usually requires only a long-term connection of the plaintiff-spouse with the forum state rather than in personam jurisdiction over the defendant-spouse. However, a decision involving property rights, including alimony or child custody, is not entitled to a preclusive effect unless the court had in personam jurisdiction over the defendant-spouse. Estin v. Estin, 334 U.S. 541 (1948).

Domestic Animal - Known to be Dangerous

A domestic animal's owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal's dangerous propensities, and the harm results from those dangerous propensities. Otherwise, at common law, the owner of a domestic animal is liable only for negligence.

Real Estate Broker - Dual Agent

A dual agent serves as agent for both the buyer and the seller of real property. This situation may arise when the real estate agents who represent the buyer and the seller of a residence are themselves each agents of the same real estate broker. It may also arise when a real estate broker represents a seller regarding the sale of the seller's residence and the buyer of that transaction regarding the sale of the buyer's own residence, which typically is a condition of the buyer's purchase of the seller's residence. Many states prohibit a person from serving as a dual agent, due to the likelihood of a conflict of interest. In states that permit a person to serve as a dual agent, the person is required to disclose the dual agency to the buyer and the seller and obtain the informed consent of each.

Wrongful Interference With Performance

A duty of good faith and fair dealing is implied in all (both common-law and UCC) contracts. Included in this duty is a duty not to hinder the other party's performance and a duty to cooperate, when necessary. In addition, if the party whose duty is subject to the condition wrongfully prevents or interferes with the occurrence of that condition, then, under the doctrine of prevention, the condition is excused and the party wrongfully interfering has an absolute duty to perform. Restatement (Second) of Contracts §§ 225, 245 cmt. a.

Generally known facts within jurisdiction

A fact does not need to be known by everyone to be "generally known"; it must only be well known within the community. Fed. R. Evid. 201(b). Despite being termed "judicial notice," a judge may not take notice of a fact based solely on his own personal knowledge.

Accurately and readily determined facts

A fact that can be accurately and readily determined need not be generally known as long as it can be determined from a source whose accuracy cannot be reasonably questioned, such as a geographic and historical fact obtained from a respected reference source.

Subject Matter Jurisdiction over compulsory counterclaim

A federal court must have subject matter jurisdiction over the counterclaim. By definition, though, a compulsory counterclaim arises out of the same transaction or occurrence as does the original claim before the court. Thus, a compulsory counterclaim (unlike a permissive counterclaim) will likely fall under the supplemental jurisdiction of the federal court and not need independent subject matter jurisdiction from the original claim.

Subject Matter Jurisdiction presumption

A federal court must presume an absence of jurisdiction until it determines that the matter falls within its rightful jurisdiction. The burden is on the party seeking to invoke the court's jurisdiction.

Fee simple determinable

A fee simple determinable is a present fee simple estate that is limited by specific durational language (e.g., "so long as," "while," "during," "until"), such that it terminates automatically upon the happening of a stated condition, and full ownership of the property is returned to the grantor or transferred to a third party. The fee simple determinable is freely alienable, devisable, and descendible, but it is always subject to the stated condition.

Removal of Chattel - Fee simple owner of real property

A fee simple owner of real property typically intends for the chattel to become a fixture by attaching chattel to real property. Such intent is judged by applying an objective, reasonable person standard that examines such factors as the importance of the chattel to the real property, whether the chattel was specially designed for use on the real property, and the amount of damage to the real property that removal of the chattel would cause. When the chattel is a fixture, the buyer of the real property is generally entitled to the chattel unless the seller reserves the right to remove the fixture in the contract of sale. Similarly, the mortgagee is entitled to the chattel upon foreclosure of the mortgage unless the mortgage provides otherwise.

Fee simple subject to a condition subsequent

A fee simple subject to a condition subsequent is a present fee simple that is limited in duration by specific conditional language. Upon the occurrence of the condition, the grantor (or his successor interest) has the right to terminate this estate.

Fee simple subject to an executory interest

A fee simple subject to an executory interest (sometimes referred to as a "fee simple subject to an executory limitation") is a present fee simple estate that is limited in duration (e.g., "provided that," "on condition that," "but if"), such that a third party gains a right to terminate the estate, or by specific conditional language, such that, upon the occurrence of the specified condition, title will automatically pass to a third party (i.e., someone other than the grantor or the holder of the present fee).

Fee Tail

A fee tail is a freehold estate that limits the estate to the grantee's lineal blood descendants by specific words of limitation (e.g., "heirs of the body"). The fee tail estate has been eliminated in most states; it is treated as a fee simple absolute estate.

Negligence - Minority Approach to Trespassers

A few states now take the approach that land possessors owe trespassers, like all other land entrants, a reasonable standard of care under all the circumstances. Of course, the fact that the land entrant is trespassing, particularly if he is undiscovered, is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care. The Third Restatement § 52 provides that although a duty of reasonable care is owed to trespassers, only the duty not to act in an intentional, willful, or wanton manner to cause physical harm is owed to flagrant trespassers who are not imperiled and unable to protect themselves. A burglar in a home would be a flagrant trespasser, but someone injured while walking in a public park at midnight, despite the presence of a posted notice that the park was closed after dusk, would not be. This distinction has not been widely adopted by the courts.

Financing Statement

A financing statement (sometimes referred to as a "UCC1") must contain the following information: i) The debtor's name; ii) The name of the secured party or a representative of the secured party; and iii) The collateral covered by the financing statement. This "bare bones" information is intended to provide a person, such as a potential creditor of the debtor, with enough information to make further inquiries of the debtor or secured party as to the existence and terms of a security interest. The limited-information method of recording a security interest for public access is frequently referred to as notice filing. UCC § 9-502(a), incl. cmt. 2.

Financing Statement length of perfection

A financing statement is generally effective for five years. The financing statement is effective during this period, even though there is no obligation secured by the collateral and no commitment to make an advance, unless a termination statement has been filed. UCC § 9-515(a).

Effective date of filing financing statement

A financing statement is generally effective upon its delivery to the filing office and tender of the filing fee provided that it contains the basic required information. UCC § 9-516(a).

After-acquired property and future advances in financing statement

A financing statement may be effective to cover after-acquired property if such property falls within the collateral described, whether after-acquired property is mentioned as such in the financing statement or even contemplated by the parties at the time that the financing statement was authorized. Similar treatment is accorded to future advances. UCC § 9-502, cmt. 2.

Proceeds in financing statements

A financing statement need not make specific reference to proceeds in order for a security interest in proceeds to be perfected. UCC §§ 9-315(c); 9-502, cmt. 2.

Fit Parent's Decision on Visitation

A fit parent has a fundamental right to the care, custody, and control of his children. Troxel v. Granville, 530 U.S. 57 (2000). Troxel requires that state courts must give "special weight" to a fit parent's decision to deny nonparent visitation; "special weight" has been held to mean a very significant difference.

Fixtures generally

A fixture is tangible personal property (i.e., chattel) that is attached to real property in such a manner that it is treated as part of the real property when determining its ownership.

Negligence - Foreseeable Intervening Causes

A foreseeable intervening cause will not cut off a defendant's liability. Examples of foreseeable intervening forces include subsequent medical malpractice, disease, or accident; negligence of rescuers; normal forces of nature; or efforts to protect a person or property. As a general guideline, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.

Future-advances mortgages

A future-advances mortgage is a mortgage given by a borrower in exchange for the right to receive money from the lender in the future. This type of mortgage is also known as a "line of credit." It is often used for home-equity, construction, business, and commercial loans, and it can provide for obligatory advances or optional advances. If advances are obligatory, the future-advances mortgage has priority with respect to amounts loaned both before and after the future-advances mortgagee has notice of a subsequent mortgage. If, however, the advances under a future?advances mortgage are optional, then a subsequent mortgage has priority over amounts loaned after the future-advances mortgagee has notice of the subsequent mortgage. There is a split among the states as to whether actual notice is required or whether constructive notice is sufficient. In addition, the modern trend is to treat a mortgagee as having priority with respect to all future advances, including optional advances, over a subsequent mortgagee.

General Agent

A general agent is an agent with broad authority over a wide variety of tasks, involving a continuity of service in a particular kind of business, without renewed authorization for each transaction or decision. General agents include store managers and purchasing agents.

General Creditor Priority

A general creditor is one who has a claim, including a judgment, but who has no lien or security interest with respect to the property in question (i.e., the collateral). A general creditor has no interest to assert under Article 9; this type of creditor does not have a claim to particular property owned by the debtor. A secured party will always prevail over a general creditor with respect to the debtor's collateral. UCC §9-201.

General Verdict

A general verdict is typically a decision by the jury as to the prevailing party and, if the plaintiff is the prevailing party, the amount of damages. It is the usual form of a jury verdict in a civil case.

Recording - Actual Notice

A grantee possessing actual, personal knowledge of a prior interest cannot prevail under a notice or race-notice recording statute.

Deed Grantor's lack of capacity

A grantor who conveys a real property interest is subject to the same capacity requirements as a person who enters into any other contract. In addition, a deed may be subject to reformation or rescission on the same grounds as any other contract (e.g., fraud, undue influence, duress).

Execution of the deed

A grantor's signature on the deed is generally required, but in most states, it need not be witnessed or acknowledged (notarized). Although a grantee's signature is not required (such a deed is sometimes referred to as a "deed poll"), the grantee's acceptance of the deed is sufficient to make covenants in the deed enforceable against the grantee.

Gratuitous Agent

A gratuitous agent is an agent who does not receive compensation. This does not prevent the creation of an agency relationship, but it generally does prevent the formation of an enforceable contract between an agent and a principal due to the lack of consideration.

Paternity Estoppel

A husband who is not the biological father of his wife's child may be estopped from denying his obligation to pay child support. Under the doctrine of equitable estoppel, the husband may be required to pay child support when: (1) There is a representation by the husband that he would provide for the child; (2) The wife relied on his representation; and (3) The wife suffered an economic detriment as a result of the reliance (e.g., loss of opportunity to obtain child support from the child's biological father). Although many jurisdictions recognize the doctrine of paternity by estoppel, some jurisdictions will permit it to be used only as a basis to prevent a party from denying his obligation to support as opposed to preventing a biological father from asserting his rights. See R.W.E. v. A.B.K., 961 A.2d 161 (Pa. Super. 2008). However, some states have recently begun placing greater emphasis on the interests of men who have been erroneously identified as fathers. In these jurisdictions, a husband's child support may be terminated, and paternity may be disestablished, without regard to a child's financial interests. See, e.g., Williams v. Williams, 843 So. 2d 720,723 (Miss. 2003); GA. CODE ANN. § 19-7-54 (2009).

Mortgages and Joint Tenancies

A joint tenant may grant a mortgage in her joint tenancy interest. In lien theory states (the majority), the mortgage is only a lien on the property; the granting of a mortgage does not sever the joint tenancy, and severance occurs only upon a foreclosure sale following a default. In title theory states (the minority), the granting of a mortgage by a joint tenant constitutes a transfer of title; the joint tenancy is between the mortgagee and the other joint tenants, and it is severed and converted into a tenancy in common; if there is more than one remaining joint tenant, however, they continue to hold their property interests with each other as joint tenants.

Judicial presentation of evidence

A judge may question, or even call, a witness. If the judge calls a witness, all parties may cross-examine that witness. A party objecting to the judge's calling or interrogation of a witness may wait to object until the next opportunity when the jury is not present. Fed. R. Evid. 614.

Judicial Lien Creditor priority

A judicial lien creditor is a creditor who acquires a lien on the collateral by a judicial process, rather than by operation of law. A judicial lien creditor takes the property subject to a perfected security interest but generally has priority over an unperfected security interest. Even if the security interest is unperfected at the time the judicial lien comes into existence, the secured party will have priority if the only reason why it was unperfected was that the secured party had not yet given value. UCC §§ 9-102(52)(a), 9-317(a)(2).

Judicial Liens and Joint Tenancy

A judicial lien is typically imposed as a consequence of an adverse judgment against a joint tenant stemming from a contractual or tort liability. In most states, a judicial lien imposed on the property interest of a joint tenant does not sever the joint tenancy. There must be a levy and sale of the property interest to effect a severance. If the joint tenant against whose property interest the lien is imposed dies prior to the sale, the remaining joint tenants are entitled to that property interest by right of survivorship.

Temporary Emergency Jurisdiction for Child Custody

A jurisdiction that does not otherwise have jurisdiction may obtain temporary emergency jurisdiction and enter an order if the child is in danger and requires immediate protection. If a prior custody order is in existence, then the court rendering the emergency order must allow a reasonable time period for the parties to return to the state of original jurisdiction and argue the issues at hand before that court. If there is no prior custody order, then the emergency order remains in effect until a decision is rendered by the child's home state. If no future determination is made, then the emergency order continues in full force and effect.

Juror's Duties

A juror is required to listen to the evidence presented in court and weigh that evidence fairly when reaching a verdict. Jurors should not consider other matters not formally admitted into evidence (e.g., investigate the scene of an accident on their own). Jurors should not discuss the facts of the case with a non-juror.

Modification of Periodic Tenancy of Holdover Tenant

A landlord can modify the terms of this new tenancy (e.g., increase the rent) if the landlord informs the tenant of the new terms prior to the expiration of the prior lease. The tenant who fails to object is deemed to have accepted the new terms.

Negligence - Off-premises Victims

A landowner generally does not owe a duty to a person not on the premises (e.g., passerby, owner of adjacent land) who is harmed by a natural condition on the landowner's premises. An exception exists, however, with respect to trees in urban areas. With respect to an artificial condition, the landowner generally owes a duty to prevent an unreasonable risk of harm to persons who are not on the premises. Similarly, with respect to an activity conducted on the premises by the owner or by someone subject to the owner's control, the landowner generally owes a duty of reasonable care to persons who are not on the premises.

Landowner Right to Lateral Support

A landowner has a right to lateral support from adjoining land. When adjoining land is in its natural state (i.e., undeveloped), a landowner who excavates on his own land is strictly liable for any damage to the adjoining land caused by the excavation. If the adjoining land has been improved (i.e., is not in its natural state), the excavating landowner is strictly liable for any damage caused by the excavation only if the land would have collapsed in its natural state (regardless of the improvement). If the improvement contributed to the collapse, then the adjoining landowner may recover only if the excavating landowner was negligent.

Air Rights

A landowner has the right to reasonable use and enjoyment of the airspace above his land as long as it does not interfere with another's reasonable use and enjoyment of land. The amount of airspace is not unlimited as it was at common law, and it is now restricted by the state and federal governments. A landowner has the right to have the air above his land be free from excessive noise and aircraft transit. This is not an exclusive right, but such intrusions may constitute a trespass, a nuisance, or a governmental taking under the Takings Clause of the Fifth Amendment. The right to airspace is transferable and may be conveyed to another (e.g., condominiums).

Negligence - Traditional Duty to Trespassers

A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.

Spousal Maintenance - lump sum

A lump-sum spousal support award is a fixed amount and may not be modified in the absence of fraud.

Exceptions to leading questions prohibition in direct examination

A leading question is permitted on direct examination when it is necessary to develop the witness's testimony. For example, a leading question is usually permitted to elicit preliminary background information that is not in dispute. In addition, a leading question is typically permitted on direct examination of a witness who has difficulty communicating due to age or a physical or mental condition. Finally, when a party calls a witness who is likely to be antagonistic, such as an adverse party or a person associated with an adverse party, or a witness who presents adverse testimony (i.e., a hostile witness), even if such testimony is unanticipated, then the party ordinarily is permitted to use leading questions.

Negligence - Licensees

A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege. Examples of licensees include: (1) Social guests—note, they may be "invited," but they are still licensees, not invitees; (2) Those whose presence is tolerated by the land possessor such as children who routinely cut across the land on their way home from school; and (3) Emergency personnel such as police, firefighters, and emergency medical technicians. The land possessor has a duty to either correct or warn a licensee of concealed dangers that are either known to the land possessor or that should be obvious to her. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land.

Life Estate

A life estate is a present possessory estate that is limited in duration by a life. The language must be clear, and must be measured in terms of a life, not a number of years (e.g., "to A for life"). Upon the end of the measuring life, title reverts to the grantor or specified remainderman. This future interest is known as a "reversion." The life estate is not subject to the Rule Against Perpetuities.

Life Estate Pur Autre Vie

A life estate measured by the life of a third party.

Rights and obligations of life tenant

A life tenant has the right of possession, the right to all rents and profits during possession, and the right to lease, sell, or mortgage the property (right of alienation). To the extent that the property can produce income, life tenants have the obligation to pay all ordinary taxes on the land and interest on the mortgage. If the property is not producing an income, the life tenant is responsible for taxes and mortgage interest to the extent of the reasonable rental value of the land. The life tenant also has the duty not to commit waste. The life tenant is under no obligation to insure the land for the benefit of the remainderman and is not responsible for damage caused by third-party tortfeasors.

Inter vivos transfer by a joint tenant

A lifetime (inter vivos) transfer by a joint tenant of his property interest effects a severance of the joint tenancy.

Reasonableness of Liquidated Damages

A liquidated damages clause may not merely serve as a threat to secure performance or as a means to punish nonperformance; otherwise it is unenforceable as a penalty. A liquidated damages clause that fails to take into consideration the gravity of the breach or its relationship to the performance rendered by the breaching party may be found to be unreasonable as may a clause that measures damages in a way that is not linked to the loss suffered by a party (e.g., gross revenue rather than net profits). The parties' characterization of a provision as a liquidated damages clause rather than a penalty, while entitled to consideration, is not determinative.

Divorce - Religion

A litigant that challenges a divorce on religious grounds will fail in all jurisdictions.

Contract zoning

A local government may enter into an agreement with a developer to permit the development of property in exchange for specific promises by the developer with regard to that property (i.e., an exaction).

Cluster Zoning

A local government may, by ordinance, permit the development of a tract of land, typically for residential purposes, in a manner that meets the zoning requirements when considered as a whole, but that fails to do so when considered on a lot-by-lot basis. Such zoning, also known as density zoning, focuses on controlling the overall density of a development, while providing flexibility with regard to the size and location of structures within the development.

Floating Zones

A local government, determining that a particular use is desirable, may adopt rules regarding such a use, but not link the use to a particular area. Instead, the zone for this use is said to "float" until a property owner applies to have the zone apply to her property.

Irrational or arbitrary zoning

A local zoning ordinance must also be rationally related to a legitimate governmental purpose. An ordinance that is irrational or arbitrary, either on its face or as applied to particular property, may be struck down. Euclid v. Ambler Realty Co., supra.

Unauthorized Zoning Ordinance

A local zoning ordinance that is unauthorized or that exceeds the authority possessed by the local government can be challenged as ultra vires. Such an ordinance is void. In most states, while the state may permit a local government entity to adopt more stringent regulations than those imposed by the state, state statutes or regulations may instead preempt a local zoning ordinance. E.g., Lakeside Lodge v. Town of New London, 960 A.2d 1268 (N.H. 2008). In some states, local governments (e.g., municipalities) are recognized as possessing the power of home rule. E.g., Ohio Const. art.XVIII, § 3. In such states, the local government has broader authority over local zoning.

Modified or Partial Comparative Fault

A majority of comparative-fault jurisdictions apply modified comparative fault. In these jurisdictions: (1) If the plaintiff is less at fault than the defendant, then the plaintiff's recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction; (2) If the plaintiff is more at fault than the defendant, then the plaintiff's recovery is barred, just as in a contributory-negligence jurisdiction; (3) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, then the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the jury finds that the plaintiff and the defendant are equally at fault.

Intentional Tort - children and mentally incompetent

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty.

Placing the Plaintiff in a False Light

A majority of jurisdictions recognize a separate tort of false light. The plaintiff must prove that the defendant (i) made public facts about the plaintiff that (ii) placed the plaintiff in a false light, (iii) which false light would be highly offensive to a reasonable person. Most jurisdictions require that the plaintiff prove actual malice by the defendant. As considered in the discussion of defamation, this may be constitutionally required in many instances. Attributing to the plaintiff views that he does not hold or actions that he did not take may constitute placing him in a false light. Similarly, falsely asserting that the plaintiff was a victim of a crime or once lived in poverty may be sufficient for the false light tort. This false light does not necessarily involve an absolute falsity; rather, the presentation of the truth in a misleading way can be sufficient to sustain this claim. Consequently, truth is not a defense if the resulting implication is still false or misleading, but it may be a defense if the resulting implication is true.

Negligence - Modern Treatment of Mitigation by Outside Sources

A majority of states have passed statutes that either eliminate the collateral?source rule entirely or modify its application (e.g., cannot be applied in medical malpractice cases). Payments made to the plaintiff by the defendant's insurer are not considered payments from a collateral source, and such payments are credited against the defendant's liability.

Several (Proportionate) Liability

A majority of states now restrict or reject joint and several liability and instead recognize pure several liability, under which each tortfeasor is liable only for his proportionate share of the plaintiff's damages. In most of these jurisdictions, each defendant's share of liability is determined in accordance with how far each deviated from the standard of reasonable care. In other words, the more culpable defendant pays the higher proportion of the damages.

Misappropriation of the Right to Publicity

A majority of states recognize an action for the misappropriation of the right to publicity, which is based on the right of an individual to control the commercial use of his identity. The plaintiff must prove: (1) The defendant's unauthorized appropriation of the plaintiff's name, likeness, or identity (Most often, commercial appropriation cases involve the use of the plaintiff's name or picture, but this is not required. A television or radio production might mimic the plaintiff's distinctive vocal patterns. Also, an action may be maintained when the defendant uses other items closely associated with the plaintiff, such as a specially designed car with unique markings associated with a racecar driver.); (2) For the defendant's advantage, commercial or otherwise; (3) Lack of consent; and (4) Resulting injury. The states are split as to whether this right survives the death of the individual, with some states treating it as a property right that can be devised and inherited.

Rule Against Perpetuities - "wait and see" stance

A majority of the states have adopted the Uniform Statutory Rule Against Perpetuities, which adopts a "wait and see" stance with respect to the applicability of the Rule. Under this stance, an otherwise invalid interest is valid if it does in fact vest within 90 years of its creation. A few states have simply repealed the Rule altogether.

Manufacturing Defect

A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant's own specifications.

Voidable Marriage - Impotence

A marriage is voidable if one party is "naturally and incurably" impotent, unless the other party knew about the condition before the marriage.

When Ceremonial Marriage Denied

A marriage license will not be issued when: (1) One of the parties is married to someone else; (2) The parties are too closely related as defined by statute; (3) The parties entered into the marriage as a sham; or (4) The parties are incapable of understanding the nature of the act. Uniform Marriage and Divorce Act (UMDA) § 207. Most jurisdictions further provide that marriage licenses will not be issued when, at the time that the license was sought, one or both parties were under the influence of alcohol, drugs, or another substance that rendered the person(s) incapable, or when a party lacked consent due to duress or fraud.

Effect of an admission

A matter admitted under Rule 36 is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. The court may permit such withdrawal or amendment if (i) doing so would promote the presentation of the merits of the action, and (ii) the court finds that it would not prejudice the requesting party in maintaining or defending the action on the merits. Rule 36(b). An admission under Rule 36 is an admission only in the pending action and cannot be used against the party in any other proceeding. Id.

Withdrawal of Jury Demand

A party may withdraw a jury trial demand with the consent of the other parties. Rule 38(d).

Removal based on Diversity

A matter cannot be removed based on diversity of citizenship more than one year after the action is commenced. This one-year rule does not apply, however, if the district court finds that the plaintiff has acted in bad faith (such as by deliberately failing to disclose the actual amount in controversy) to prevent a defendant from removing the action. § 1446(c). If removal is based on diversity and the plaintiff (i) seeks nonmonetary relief, (ii) is not required under state law to demand a specific sum, or (iii) is permitted by state law to recover more than the amount demanded, then the notice of removal may assert that the amount in controversy exceeds $75,000, and the district court will have jurisdiction if it finds, by a preponderance of the evidence, that the amount does exceed $75,000. A defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds $75,000; it does not need to contain evidentiary submissions. Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. ____, 135 S. Ct. 547 (2014).

Responses and Objections to requests for admission

A matter will be admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or her attorney. Rule36(a)(3). If a matter is not admitted, then the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter, and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. Rule 36(a)(4). An answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that he has made a reasonable inquiry and that the information he knows or can readily obtain is not sufficient to enable him to admit or deny. Id.

Mortgagee's right to possession - intermediate title theory

A minority of jurisdictions follow the intermediate title theory, which in practice operates similar to the title theory. Under this theory, the mortgagor retains legal title until default, and, upon the mortgagor's default, it vests legal title in the mortgagee. Regardless of the title theory adhered to by a jurisdiction, the mortgagee may take possession of the real property if the mortgagor abandons the property.

Race Statute

A minority of states have race statutes, under which a purchaser who records first prevails, regardless of his knowledge of any prior conflicting interests.

Mistake in Contract Formation Generally

A mistake is a belief that is not in accord with the facts as to a basic assumption on which the contract was made that materially affects performance. Note that the mistake must be with regard to a belief about an existing fact and not with regard to something that will happen in the future. Risks with regard to changing facts are governed by the doctrines of impracticability and frustration of purpose.

Improvement to mortgaged property

A mortgage generally includes improvements made to the property. Consequently, in satisfaction of the mortgage obligation, a mortgagee is entitled to the proceeds from the sale of the property, including the amount attributable to an improvement of the property by the mortgagor. This right does not extend to an improvement made by a mortgagor's tenant, such as a trade fixture, to which the tenant has a superior right. (Note: If an improvement has been funded by a second mortgage, the second mortgagee may have rights in the property that are superior to the rights of the first mortgagee in the property.)

Mortgages generally

A mortgage is a document that conveys to an obligee, typically a lender such as a bank, an interest in real property as security for an obligation. The obligation may be owed by the mortgagor or a third party. The mortgagor is the borrower and the mortgagee is the person with the security interest in the real property, typically a bank.

Defenses against mortgage enforcement generally

A mortgage is generally enforceable only to the extent that the underlying obligation is enforceable. A mortgage is subject to the same defenses as the underlying obligation secured by the mortgage (e.g., mistake, duress, failure of consideration, fraud, or lack of capacity). In addition, when the interest on the mortgage obligation violates state usury law, the lender will forfeit the interest, but generally not the principal due on the loan.

Discharge of Mortgage Generally

A mortgage may be discharged by payment of the debt secured by the mortgage or by acceptance by the mortgagee of a deed in lieu of foreclosure. In addition, the doctrine of merger may be applied to eliminate a mortgage.

Mortgagor Waste

A mortgagor in possession has a duty not to commit waste at least to the extent that the waste impairs the mortgagee's security. This duty exists even if the mortgagor is not otherwise in default.

Remand After Removal

A party must make any motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within 30 days after the filing of the notice of removal. § 1447(c).

Time for Initial Disclosures

A party must make the initial disclosures required by Rule 26(a)(1) at or within 14 days after the parties' Rule 26(f) conference (see § VII.C. Discovery Conference, infra), unless a different time is set by stipulation or court order.

After-acquired property

A mortgagor may grant a mortgagee rights to property that the mortgagor acquires in the future. For the mortgagor to have such rights, the mortgage must clearly state that it applies to after-acquired property. A provision in a mortgage that the mortgage applies to "all my property" is not sufficient. In addition, to be enforceable against third parties, the mortgagee must properly record his interest in the property subsequently acquired by the mortgagor in the place where interests in that property must be recorded (e.g., the county in which the after-acquired property is located). Even when properly recorded, an interest in after-acquired property is junior to a purchase-money mortgage. Restatement (Third) of Property: Mortgages §7.5.

Clogging the equity of redemption

A mortgagor may waive his right to redeem after the mortgage is executed in exchange for consideration. However, courts routinely reject attempts by the mortgagee to deny the mortgagor this right (i.e., to "clog" the equity of redemption) prior to default, such as by the inclusion of a waiver clause in the mortgage.

Procedure and Timing of Judgment as Matter of Law

A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. If a party moves for a directed verdict after the close of the plaintiff's case and the motion is denied, then the party may be unable to pursue a renewed motion for judgment as a matter of law after entry of judgment unless the party also moves for a directed verdict after the presentation of all evidence. There is a dispute among the circuit courts as to whether the second motion is always mandatory or is unnecessary when the defendant's evidence could not have caused the court to grant the motion. Compare Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353 (7th Cir. 1996) (second motion required) with BE & K Constr. Co. v. United Bhd. of Carpenters & Joiners, 90 F.3d 1318 (8th Cir. 1996) (second motion not required).

Sanctions by motion

A motion for sanctions must be made separately from any other motion and must describe the specific conduct alleged to violate Rule 11. The motion must be served under Rule 5, but it must not be filed or presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within any other time set by the court.

Procedure for Motion to compel

A motion to compel must be served on all parties and be accompanied by a certificate that the movant has in good faith conferred or attempted to confer with the opposing party in an effort to obtain the disclosure or secure the information or material without court action. Rule 37(a)(1). If the subject of the motion to compel is a party, then the motion must be filed with the court in which the action is pending. If the subject of the motion is a nonparty who was subpoenaed under Rule 45, then the motion must be filed in the court that issued the subpoena. Rule 37(a)(2).

Negative Easements

A negative easement (or "restrictive covenant") prevents the owner from using land in particular ways in order to benefit the land of the holder of the easement. To be valid, a negative easement must be expressly created by a writing signed by the grantor, and it is typically recognized only in relation to restricting use of light, air, support, or stream water from an artificial flow.

Contract Novation

A novation is the substitution of a new contract for an old one when the original obligor is released from his promises under the original agreement. A novation may be express or implied after delegation if (1) the original obligor repudiates liability to the original promisee and (2) the obligee subsequently accepts performance of the original agreement from the delagatee without reserving rights against the obligor.

Parental Consent - Upbringing

A parent has a right to raise her child as she sees fit. Wisconsin v. Yoder, 406 U.S. 205 (1972). This right of parents extends to decisions relating to the religious upbringing of a child.

Negligence - Recovery for Parent-child

A parent may recover damages for loss of services if a child is injured due to the defendant's tortious conduct. Many jurisdictions allow a parent to recover for loss of the child's companionship in a wrongful-death action if the child is killed, but only a few jurisdictions allow a parent to recover for such damages if the child is injured but lives. Similarly, many jurisdictions allow a child to recover for loss of the parent's companionship in a wrongful-death action, but most do not allow the child to recover such damages if the parent is injured but lives. In a wrongful-death action, the child's claim for loss of support resulting from the decedent's death will be brought by the statutorily designated adult family member as part of the wrongful-death action.

Intentional Tort Defense - Parental Discipline

A parent may use reasonable force or impose reasonable confinement as is necessary to discipline a child, taking into consideration the age of the child and the gravity of the behavior. An educator has the same privilege unless the parent places restrictions on that privilege.

Limits on Parental Authority

A parent's authority over his child is not absolute. Laws are in place to protect children from harm, whether or not that harm is intentional. Child abuse and neglect laws, as well as compulsory school attendance statutes, are in place to ensure that a child is well taken care of and supervised appropriately. As has been discussed, the state may terminate parental rights despite parents' constitutional right to raise their children when it is in the best interests of the child. Grounds for termination include abandonment, neglect, failure to support, or inflicting serious harm, among others. The state must prove these allegations by clear and convincing evidence because of a parent's right to due process.

Termination of Child Support generally

A parent's obligation to pay support usually ends when the child reaches the age of majority (typically 18 years of age). Some jurisdictions, however, have the authority to order support beyond the age of majority when the child is in college. An additional exception applies when an adult child is unable to support himself due to circumstances such as a mental or physical disability. In most jurisdictions, termination may also take place if the child marries, the parental rights are terminated, the child commences active duty in the military, or the parent or child dies. A court, however, does have the right to order that a parent obtain insurance on his life for the benefit of the children to provide future support after his death.

Partnership principal

A partnership is an association of two or more persons for the purpose of carrying on as co-owners of a business for profit. The partnership can be considered the principal in an agency relationship. Partners, employees of the partnership, and other persons, such as attorneys, can all serve as agents of the partnership.

Role of the jury in evidence determinations

A party has the right to present evidence (e.g., bias) that is relevant to the weight and credibility of other evidence (e.g., the testimony of a witness). Once evidence has been admitted, it is the role of the jury to determine the weight and credibility of the evidence. Fed. R. Evid. 104(e).

Cross-claims not mandatory

A party is never required to assert a cross-claim against a coparty. Pursuant to Rule 13(h), new parties to a cross-claim may be joined as long as they meet the requirements for joinder under Rule 20. New parties must be joined if they meet the requirements for joinder under Rule 19.

Limitations on discovery on electronically stored information

A party is not required to provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. If challenged, the party will have the burden to show the undue burden and cost. Even if undue burden and cost is shown, the court may still order such discovery if the requesting party shows good cause. Rule26(b)(2)(B). Moreover, the requesting party may specify the form in which the documents should be produced.

Conscious Ignorance in Contract Formation

A party may bear the risk of a mistake, however, when she is aware at the time of the contract that she has only limited knowledge of the facts to which the mistake relates, and she accepts her limited knowledge as sufficient. Note that the risk created by conscious ignorance rests on the party being aware of her limited knowledge. Restatement (Second) of Contracts § 154.

Challenge to evidence ruling generally

A party may challenge an evidentiary ruling as erroneous only if the ruling affects a substantial right of a party, and the party notifies the judge of the error. There are two ways to call the court's attention to the error—objection and offer of proof. Fed. R. Evid. 103(a). (Note: While the judge in a jury trial must permit a party to challenge the court's ruling, the judge must also conduct the trial to the extent practicable so that inadmissible evidence is not suggested to the jury. Fed. R. Evid. 103(d).)

Jury Trial and Issues

A party may specify the issues for which it is demanding a jury trial. Otherwise, a jury trial demand is treated as requesting a jury trial with respect to all issues triable by a jury. If a party requests a jury trial for only some issues triable by a jury, then any other party may serve a jury trial demand on any or all remaining issues that are triable by a jury. This party must file its demand within 14 days of being served with the earlier jury trial demand or any shorter time set by the court. Rule 38(c).

Voluntary change of state citizenship and diversity jurisdiction

A party may voluntarily change state citizenship after the accrual of a cause of action, but before the commencement of a lawsuit, and therefore establish or defeat diversity jurisdiction. A party's motive for changing citizenship is irrelevant, but the change of state citizenship must be genuine to be recognized. In determining whether a party's change of state citizenship is genuine, a court may consider whether the party changed her domicile specifically to create or destroy diversity. Compare Williamson v. Osenton, 232 U.S. 619, 625 (1914) (finding that a wife separated from her husband could establish her own domicile in a new state and maintain an action based on diversity jurisdiction) with Morris v. Gilmer, 129 U.S. 315, 328-29 (1889) (finding that the plaintiff did not change his domicile because he only moved there to create diversity and did not intend to remain in the new state indefinitely).

Time to disclose expert testimony

A party must make these disclosures at the times and in the sequence that the court orders, but absent a stipulation or court order, the disclosures must be made at least 90 days before the date set for trial or for the case to be ready for trial. If the evidence is intended solely to contradict or rebut the opposing party's expert evidence on the same subject matter, then disclosure must be made within 30 days after the other party's disclosure. Rule 26(a)(2)(D).

Child custody and visitation sanctions

A party seeking enforcement of child-custody and visitation orders can request assistance through the court system. The court hearing the case may impose a variety of sanctions, including compensatory visitation, attorney's fees, court costs, fines, and jail time. Tort damages may also be awarded to a parent for the period of time that the child is wrongfully out of the parent's custody. In most states, a party cannot be denied parenting time for his failure to pay child support, or based merely on a child's wishes.

Failure to state a compulsory counterclaim

A party that fails to assert a compulsory counterclaim waives the right to sue on the claim and is generally precluded from ever suing on the claim in federal court.

Mitigating Damages for Contracts

A party to a contract must avoid or mitigate damages to the extent possible by taking such steps as to not involve undue risk, expense, or inconvenience. The nonbreaching party is held to a standard of reasonable conduct in preventing loss. Although the standard is often phrased as a "duty to mitigate damages," a nonbreaching party's failure to mitigate does not give the breaching party a right to sue the nonbreaching party for such failure; it only reduces the damages that may be recovered by the nonbreaching party. For example, with regard to a sale of goods, a nonbreaching buyer's failure to take reasonable steps to mitigate damages by buying substitute goods (i.e., cover) will prevent a claim for consequential damages but will not deprive the buyer of damages measured by the difference between the contract and market prices. Note that reasonable expenses incurred as a result of efforts to mitigate damages can be recovered, even if the mitigation attempt was unsuccessful.

Withdrawal and restitution for illegality in contract

A party to an illegal contract who withdraws from the transaction before the improper purpose has been achieved may be entitled to restitution for a performance that the party has rendered when the party has not engaged in serious misconduct. Restatement (Second) of Contracts §199.

Waiver of verdict on issues of fact

A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury, unless, before the jury retires, the party demands submission of the issue to the jury. Otherwise, the court may make a finding on that issue. Where the court does not do so, the court is deemed to have made a finding consistent with its judgment on the special verdict. Rule 49(a)(3).

Examination of witness generally

A party who calls a witness may examine the witness subject to the evidentiary rules. Another party may then cross-examine that witness.

Voidable Marriage - Age

A party who is under the age of consent to marry and who did not seek the consent of his parents or the court may apply to have the marriage annulled. If the partner, however, is of legal age to marry, then the partner may not attack the validity of her marriage to an underage person. In many states, the declaration of validity may also be brought by the underage party's parents or legal guardian. Many courts, however, will prohibit the filing of an annulment based on age once the party who was not of legal age has attained such age and continued to freely cohabit with the other party as a married couple.

Notice of oral deposition

A party who seeks an oral deposition of a person must give reasonable written notice to every other party, stating the time and place of the deposition and, if known, the deponent's name and address. Notice of deposition is all that is needed to compel attendance by any party, even a party who is beyond the reach of the court's subpoena power. To compel attendance by a nonparty, a subpoena must be served. Rule 30(b).

Waiver and Reinstatement of Contract Conditions

A party whose duty is subject to the condition can waive the condition, either by words or by conduct. The condition may be reinstated if: (1) The waiving party communicates a retraction of the waiver before the condition is due to occur; and (2) The other party has not already suffered detrimental reliance. For contracts subject to the common law only a condition that is not a material part of the agreement may be waived without consideration. For contracts subject to the UCC, while a condition that is a material part of the agreement may be waived in good faith without consideration, the contract as modified may be subject to the Statute of Frauds if the price is $500 or more.

Negligence - Proximate Cause and Direct Cause

A plaintiff can recover when the defendant's tortious acts are the direct cause of the plaintiff's harm without the intervention of independent contributing acts.

Delay in Performance of a Condition of a Contract

A party's delay in performing an obligation suspends the duty that is conditioned on that performance, but it does not necessarily prevent the performance of that duty from constituting substantial performance. Among the factors considered are the degree to which the delay deprives the other party of benefit for which he contracted and the extent to which that party can be compensated for that deprivation. Restatement (Second) of Contracts § 241.

Impracticability of Contract Performance

A party's duty to perform can be dismissed by impracticability. The defense of impracticability is available if: (1) Performance becomes illegal after the contract is made; (2) The specific subject matter of the contract (e.g., the goods) is destroyed; (3) In a personal services contract, the performing party to the contract dies or becomes incapacitated; or (4) Performance becomes impracticable. UCC § 2-615; Restatement (Second) of Contracts § 265.

Possessory security interest - continuous perfection

A perfected possessory security interest in collateral generally remains continuously perfected, despite the movement of the collateral to another state, when the security interest is perfected under the laws of the state to which the collateral is moved. UCC § 9-316(c).

Indefinite automatic perfection by same office

A perfected security interest in proceeds may also continue indefinitely when: i) A filed financing statement covers the original collateral; ii) The proceeds are collateral in which a security interest may be perfected by filing in the office in which the financing statement has been filed; and iii) The proceeds are not acquired with cash proceeds. However, under this option, if the original filing ceases to be effective after the 20-day period, then the security interest in proceeds also ceases to be automatically perfected. UCC § 9-315(d)(1),(e)(1). Note that when the original filing ceases to be effective during the 20-day period after the security interest in the proceeds attaches, the security interest in the proceeds continues to be automatically perfected until the expiration of that period. UCC § 9-315(e)(2).

Creation of Periodic Tenancy

A periodic tenancy can be created by express agreement, implication (e.g., the failure of an express agreement to mention a termination date), or operation of law (e.g., a holdover tenant).

Periodic Tenancy

A periodic tenancy is a repetitive, ongoing estate measured by a set period of time (e.g., a month-to-month lease) but with no predetermined termination date. A periodic tenancy automatically renews at the end of each period until one party gives a valid termination notice. The Statute of Frauds does not apply to a periodic tenancy because its nature is that it is for a non-fixed term.

Permanent Injunction

A permanent injunction is a determination on the merits. Once issued, it continues until dissolved by the court, but any affected person may move for modification or dissolution. The standard for a permanent injunction is essentially the same as for a preliminary injunction except that the plaintiff must show actual success on the merits. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006).

Counterclaim and Subject Matter Jurisdiction

A permissive counterclaim does not necessarily fall within the supplemental jurisdiction of the federal court, as it does not arise out of the same transaction or occurrence as the original claim. Thus, a permissive counterclaim must on its own meet the requirements for federal subject matter jurisdiction (either diversity or federal question).

Permissive Counterclaims and Amount in Controversy

A permissive counterclaim, which is a claim arising out of a transaction that is unrelated to the plaintiff's claim (see Rule 13(b)), does have to meet the statutory jurisdictional amount requirement.

Duress - deprivation of meaningful choice

A person is deprived of meaningful choice only when he does not have a reasonable alternative to succumbing to the threat. Thus, with regard to the threat of a civil action, a person generally has the reasonable alternative of defending against the action. However, if the threat also involves the seizure of property in conjunction with the civil action, or if it causes the person to be unable to fulfill other contractual obligations, then the person may be deprived of a meaningful choice. Restatement (Second) of Contracts § 175.

Malicious Prosecution

A person is liable for malicious prosecution when: i) He intentionally and maliciously institutes or pursues, or causes to be instituted or pursued; ii) For an improper purpose; iii) A legal action that is brought without probable cause; and iv) That action is dismissed in favor of the person against whom it was brought. Most jurisdictions have extended malicious prosecution to include civil cases as well as criminal actions. The civil action is sometimes known as wrongful institution of civil proceedings. The plaintiff may recover for any damage proximately caused by the malicious prosecution, including legal expenses, lost work time, loss of reputation, and emotional distress. Note that judges and prosecutors enjoy absolute immunity from liability for malicious prosecution.

Intentional Tort Defense - Obligation to Retreat

A person is not required to retreat under the majority rule, but during the past generation, there was a trend toward requiring retreat before using deadly force unless the defendant was in (or within the curtilage of) her own home. Under the Second Restatement, a person has a duty to retreat before she may use deadly force in defense, if she can do so safely. However, more recently, a few more than half of the states have adopted some form of "stand your ground" laws (by either statute or judicial interpretation) that extend the "no retreat" concept to any place the defendant might legally be by providing that a person has no duty to retreat and has the right to stand her ground and meet force with force, including deadly force, if she reasonably believes it is necessary to do so to prevent death or great bodily harm.

Defense of Property - Recapture of Chattels

A person may use reasonable force to reclaim her personal property that another has wrongfully taken. Before using reasonable force, the person must request the return of the chattel unless the request would be futile. If the original taking was lawful (e.g., a bailment) and the current possessor of the property has merely retained possession beyond the period of time to which the owner consented, then only peaceful means may be used to reclaim the chattel. Restatement (Second) of Torts § 104 (1965).

Marriage and mental incapacity

A person must be able to understand the nature of the marriage contract, and its duties and responsibilities, to enter into a marriage. Note that a marriage contract entered into during a lucid moment is valid, as long as the person understood the nature of the contract at the moment the contract was executed.

Minors in agency relationships

A person under the age of majority does not have the legal capacity to form contracts. Therefore, a minor generally may not be bound to a contract by an agent. However, a minor can serve as an agent.

Negligence - Rescuers

A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. To the extent that a rescuer's efforts are unreasonable, comparative responsibility should be available to reduce, rather than to bar, recovery by a rescuer. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 32 (2010). An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job ("firefighter's rule").

Restitution for quasi-contract

A person who confers a benefit on another in the absence of any contractual relationship, such as a doctor who happens upon an accident and renders emergency medical services to a victim, may be able to recover in restitution to the extent that retention of the benefit would result in unjust enrichment of the recipient.

Incompetents in agency relationships

A person who has a factual incapacity, such as incompetence, due to a mental condition related to medication, drugs, alcohol, or illness, does not have the legal capacity to be a principal, but she may be an agent.

Agency by Estoppel

A person who has not represented that an individual is authorized to act as an agent may be estopped from denying the existence of an agency relationship or an agent's authority with respect to a transaction entered into by the agent. Estoppel applies when a third party is justifiably induced to make a detrimental change in position because that third party believed the transaction was entered into for the principal and either the principal: (1) Intentionally or carelessly caused the belief; or (2) Having notice of such belief and the possibility that the belief might induce others to change their positions in reliance on it, failed to take reasonable steps to notify them of the facts.

Subrogation in real property

A person who pays off another person's mortgage obligation may become the owner of the obligation and the mortgage to the extent necessary to prevent unjust enrichment. Among the circumstances in which the equitable remedy of subrogation is appropriate is when the payor (i.e., the subrogee) is under a legal duty to pay the obligation, or when the payor does so to protect his own interest or on account of misrepresentation, mistake, duress, fraud, or undue influence. Restatement (Third) of Property: Mortgages § 7.6.

Negligence - Placing Another in Peril

A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

Defamation - Republication

A person who repeats a defamatory statement may be liable for defamation even though that person identifies the originator of the statement and expresses a lack of knowledge as to the truthfulness of the statement.

Negligence - Assumption of Duty

A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue. Note that some states have enacted "Good Samaritan" statutes to protect doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Plain error rule for evidence

A plain error is one that is obvious to a reviewing court. A plain error that affects a substantial right is grounds for reversal, even if no objection or offer of proof was made. Fed. R. Evid. 103(e). A court may take notice of a plain error to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process.

NIED - Zone of Danger

A plaintiff can recover for negligent infliction of emotional distress from a defendant whose tortious conduct placed the plaintiff in harm's way if the plaintiff demonstrates that: (1) He was within the "zone of danger" of the threatened physical impact—that he feared for his own safety because of the defendant's negligence; and (2) The threat of physical impact caused emotional distress.

Strict Product Liability - Inference of Defect

A plaintiff is entitled to a res ipsa loquitur-like inference that a product defect existed if the harm suffered by the plaintiff: (1) Was of a kind that ordinarily occurs as a result of a product defect; and (2) Was not solely the result of causes other than a product defect existing at the time of sale or distribution. This inference is frequently applied in cases involving a manufacturing defect when the product is lost or destroyed as a consequence of the incident that caused the plaintiff's harm.

Removal based on amount in controversy counter claim

A plaintiff is not allowed to remove a case to federal court, even if the defendant is diverse and has counterclaimed for more than the federal statutory jurisdictional amount. Removal is only allowed by defendants. When a diverse defendant makes a permissive counterclaim under state law for more than the federal statutory jurisdictional amount, and the plaintiff's claim is for less than the federal statutory jurisdictional amount, the defendant is not permitted to remove the case to federal court. When a diverse defendant makes a compulsory counterclaim under state law for more than the federal statutory jurisdictional amount, and the plaintiff's claim is for less than the federal statutory jurisdictional amount, courts are split on allowing removal by the defendant. Most, though, do not allow the defendant to remove the case to federal court.

Defamation generally

A plaintiff may bring an action for defamation: (1) If the defendant's defamatory language; (2) Is of or concerning the plaintiff; (3) Is published to a third party who understands its defamatory nature; and (4) It damages the plaintiff's reputation. For matters of public concern, the plaintiff is constitutionally required to prove fault on the part of the defendant. If the plaintiff is either a public official or a public figure, then the plaintiff must prove actual malice.

Joinder and Subject Matter jurisdiction

A plaintiff or defendant sought to be joined must also meet the requirements of federal subject matter jurisdiction.

Joinder and Subject Matter Jurisdiction

A plaintiff or defendant to be joined under Rule 19 must meet the requirements of federal subject matter jurisdiction. Thus, if the exclusive basis for the court's subject matter jurisdiction is diversity jurisdiction, and a party sought to be joined would destroy diversity, joinder is not permitted. Note that under 28 U.S.C. § 1367(b), supplemental jurisdiction does not apply to the claims of a party sought to be joined under Rule 19 in a case based exclusively on diversity jurisdiction if the exercise of jurisdiction would be inconsistent with the diversity requirements.

Negligence - Emotional Distress

A plaintiff who is the victim of a tort that causes physical injury may also add emotional distress as an element of damages (sometimes known as "parasitic" damages). Most jurisdictions do not allow a plaintiff to recover in negligence for pure emotional distress, though a plaintiff with some physical symptom from the distress may be able to recover through a claim for negligent infliction of emotional distress.

Contributory Negligence - Helpless Plaintiff

A plaintiff who, due to his own contributory negligence, is in peril from which he cannot escape is in helpless peril. In such cases, the defendant is liable if she knew or should have known of the plaintiff's perilous situation and could have avoided harming the plaintiff but for her (the defendant's) own negligence.

Contributory Negligence - Inattentive Plaintiff

A plaintiff who, due to his own contributory negligence, is in peril from which he could escape if he were paying attention is an inattentive or oblivious plaintiff. The defendant is liable only if she has actual knowledge of the plaintiff's inattention.

Assault - Reasonable Apprehension

A plaintiff's apprehension must be reasonable. Unlike with battery, the plaintiff must be aware of or have knowledge of the defendant's act. The defendant's apparent ability to cause harm (e.g., a "real-looking" toy gun) can be sufficient to place the plaintiff in apprehension of harm. Even if the victim is confident that he can prevent the threatened harm, there may still be an assault.

Request for waiver of service

A plaintiff's notice and request for waiver of service must be in writing and be addressed to the individual defendant, or, for a corporation, to an officer, managing or general agent, or any other agent authorized by appointment or by law to receive service of process. It must be accompanied by a copy of the complaint, two copies of a waiver form, and a prepaid means for returning the form, and it must give the defendant a reasonable time of at least 30 days after the request was sent (or at least 60days if sent to a foreign defendant) to return the waiver. Rule 4(d)(1).

Planned-Unit Development

A planned-unit development is similar to cluster zoning, but it typically involves a larger tract of land and a mixture of residential and other uses of the land. As with cluster zoning, the focus is on maintaining the same density of development that would otherwise be permitted but allowing flexibility in the development of individual parcels of land.

Compulsory Counterclaims

A pleading is required to state as a counterclaim any claim that, at the time of service, the pleader has against an opposing party if the claim arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim and does not require adding another party over whom the court cannot acquire jurisdiction. Rule 13(a)(1). However, the pleader is not required to make the claim if, at the time the action was commenced, the claim was the subject of another pending action, or if the opposing party's action is in rem or quasi in rem and the party does not assert any other counterclaim in that action. Rule 13(a)(2).

Intentional Tort Defense - Arrest by police officer

A police officer must reasonably believe that a felony has been committed and that the person she arrests committed it. Unlike a private citizen, a police officer who makes a mistake as to the commission of a felony is not subject to tort liability.

Defense of Property - Preventing Intrusion

A possessor of land may use reasonable force to prevent or terminate another's intrusion upon her land. However, the possessor may not use force to prevent or terminate the visitor's intrusion on her land if the visitor is acting under necessity. In addition, a landowner is generally entitled to use reasonable force only after making a request that the trespasser desist and the trespasser ignores the request. Such a request is not required if the landowner reasonably believes that a request will be useless or that substantial harm will be done before it can be made. Restatement (Second) of Torts § 77 (1965). The land possessor is not liable for using force if she makes a reasonable mistake with respect to an intrusion occurring on her land.

Marital Property - Future Interest

A possible future interest in property (e.g., inheritance) is not distributable.

Preliminary Injunction

A preliminary injunction is a form of relief issued prior to a full hearing on the merits, but only upon notice to the defendant and a hearing on whether the injunction should issue. Should an expedited decision on the merits be appropriate, a court may order a trial on the merits to be consolidated with the preliminary injunction hearing. Rule 65(a). A plaintiff seeking a preliminary injunction must establish that: i) He is likely to succeed on the merits; ii) He is likely to suffer irreparable harm in the absence of relief; iii) The balance of equities is in his favor; and iv) The injunction is in the best interest of the public. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).

Premarital agreements

A premarital (also known as "prenuptial" or "antenuptial") agreement is a contract made before the marriage, typically containing terms that relate to division of property or spousal support in the case of a divorce and at death. As with any contract, consideration is required. A valid marriage is sufficient consideration for a premarital agreement. Many jurisdictions have held that a premarital agreement must expressly state its applicability to divorce proceedings. Additionally, clauses relating to child custody and support are unenforceable. Adopted in 26 jurisdictions, the Uniform Premarital Agreement Act (UPAA) is a uniform law that relates specifically to these types of contracts and imposes the same standards that are discussed below at § V.B., Validity of Marital Agreements. Individual states have amended this act in various ways throughout the years, resulting in the 2012 enactment of the Uniform Premarital and Marital Agreements Act (UPMAA). The act applies the same standards and requirements for both marital agreements and premarital agreements. As of this printing, two states, Colorado and North Dakota, have enacted the UPMAA. When there is an issue as to which state's law will govern whether a premarital agreement is enforceable, most states apply the law of the state with the most significant relationship to the agreement and the subsequent marriage. Some states apply the law of the state where the agreement was executed.

Validity of Premarital agreements generally

A premarital agreement is enforceable if there has been full disclosure, the agreement is fair and reasonable, and it is voluntary. The agreement must be in writing and signed by the party to be charged. The agreement may be amended or revoked after the marriage, provided both parties sign a written agreement to that effect. The burden of proving its invalidity is by clear and convincing evidence. If the marriage is voided, a premarital contract is enforceable only if it will avoid an inequitable result.

Presumptions by trier of fact

A presumption is a conclusion that the trier of fact is required to draw upon a party's proof of an underlying fact or set of facts (i.e., basic facts). A rebuttable presumption may be overcome by evidence to the contrary; a conclusive presumption may not.

Strict Liability generally

A prima facie case for strict liability requires (i) an absolute duty to make the plaintiff's person or property safe, (ii) breach, (iii) actual and proximate causation, and (iv) damages. The three general situations in which strict liability is imposed are: i) Dangerous activities; ii) Animals; and iii) Defective or dangerous products.

Private Nuisance - prima facie

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use or enjoyment of his land.

Ratification

A principal can ratify an act performed by another person, whether or not the person is an actual agent of the principal. Ratification occurs when a principal affirms a prior act that was done or purported to be done on the principal's behalf. The principal's affirmation may be either express or implied (such as through conduct), and consideration is not required. For ratification to occur, the following elements must exist: (1) The principal must ratify the entire act, contract, or transaction (either by express manifestation of assent or conduct that justifies a reasonable assumption of consent); (2) The principal must have the legal capacity to ratify the transaction at the time it occurs; the third party must also have the legal capacity to engage in the transaction; (3) The principal's ratification must be timely (before the third party withdraws from the transaction); and (4) The principal must have knowledge of the material facts involved in the original act.

Principal's Contractual Duty

A principal has a duty to act in good faith in accordance with the terms of the contract between the agent and the principal.

Disclosed Principal

A principal is a disclosed principal if the third party has notice of both the existence and identity of the principal. Unless the agent and third party agree otherwise, an agent who enters into a contract on behalf of a disclosed principal does not become a party to the contract. To avoid becoming a party to the contract, the agent must: (1) Enter into the contract on behalf of the disclosed principal; (2) Affirmatively disclose to the third party both the existence and identity of the principal; and (3) Not agree to become a party to the contract.

Principal's Direct Liability to Third Parties

A principal is directly liable to a third person harmed by an agent's conduct if: (1) The principal authorizes or ratifies the agent's conduct; (2) The principal is negligent in selecting, supervising, or otherwise controlling the agent; or (3) The principal delegates to an agent performance of a non-delegable duty to use care to protect other persons or their property, and the agent breaches the duty.

Principal's Duty of Good Faith and Fair Dealing

A principal is obligated to treat the agent fairly and in good faith and to provide the agent with information concerning risks of physical or financial harm or loss that the principal knows or should know are present in the agent's work but that are unknown to the agent. In addition, although a principal does not owe an agent a duty of loyalty, a principal has a duty to refrain from conduct likely to injure an agent's business reputation or reasonable self-respect.

Vicarious Liability Under Agent's Apparent Authority

A principal is vicariously liable for a tort committed by an agent with apparent authority when the agent's appearance of authority enables him to commit a tort or conceal its commission. Such torts include fraudulent and negligent misrepresentation, defamation, tortious institution of legal proceedings, and conversion of property.

Implied Authority by Position

A principal may manifest assent to the actions of his agent by placing the agent in a position that customarily has certain authority, such as vice president or treasurer.

Principal's Remedies

A principal may pursue one or more of the following remedies against an agent who breaches a duty: (1) An injunction; (2) A breach-of-contract action for monetary damages; (3) A tort action for harm suffered, including punitive damages; (4) Avoidance or rescission of a contract or a transaction; (5) Restitution; (6) An accounting to the principal for the value of the agent's use of the principal's property; (7) Termination of the agency relationship; (8) Forfeiture of commission or other compensation paid or payable; and (9) Disgorgement of profits earned by the agent without the principal's consent.

Principal's Control in Agency Relationship

A principal need not be able to control all of an agent's actions or conduct to have a binding agency relationship. It is sufficient that the principal has the right to control the result or the ultimate objectives of the agent's work.

Principal Direct Liability - Nondelegable Duties

A principal who has a non-delegable duty cannot avoid liability by delegating the duty to another person. Generally, a duty is non-delegable when the responsibility is so important to the community that a person should not be permitted to transfer it to another person. Examples include the duty of a landlord to keep premises in a safe condition and the duty to use care in inherently dangerous activities such as the use of explosives.

Negligence in Selecting or Controlling Agent

A principal who is negligent in selecting, supervising, or otherwise controlling an agent runs the risk of liability attaching to that negligence. Basic tort requirements of duty, breach, causation, and damages must be satisfied for the principal to be liable. A principal has a duty to a third party with respect to actions by an agent if there is a special relationship between a principal and the third party, such as that between a common carrier and a passenger.

Error in Principal's Manifestation

A principal's manifestation intended for one agent and given to another agent in error can create express authority to the agent who received the manifestation by mistake. The same result occurs when a principal's manifestation concerning the subject matter is incorrect.

Estoppel of a principal - equal-dignities rule

A principal-grantor may be estopped from asserting the lack of writing as a defense when the principal has made a manifestation of an agent's authority that induces detrimental reliance by a third party. Restatement (Third) of Agency §3.02.

Intentional Tort Defense - Arrest by private citizen

A private citizen is privileged to use force (e.g., commit a battery or false imprisonment tort) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it. It is a defense to make a reasonable mistake as to the identity of the felon but not as to the commission of the felony.

Private Nuisance - Real Property

A private nuisance is a substantial, unreasonable interference with another individual's use or enjoyment of his property. The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct. Anyone with possessory rights in the property may bring a nuisance claim. A substantial interference is one that would be offensive, inconvenient, or annoying to an average person in the community. The interference is unreasonable if the injury caused outweighs the usefulness of the defendant's actions.

Products Liability generally

A product may be defective because of a defect in its design or manufacture or because of a failure to adequately warn the consumer of a hazard related to the foreseeable use of the product. When a plaintiff files a products-liability case, he generally has at least three possible claims on which to base an action: negligence, strict products liability, and breach of warranty. Each type of claim requires different elements. (The Third Restatement provides for only a single cause of action in the absence of additional facts, and some courts have begun to adopt this approach.) If, however, the defendant intended or knew with substantial certainty the consequences of the defect, then the cause of action could be based on an intentional tort. As with any intentional tort claim, punitive as well as compensatory damages are recoverable. The same defenses germane to each type of tort are applicable.

Negligence - Professionals

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as another practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge. Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant's deviation from that standard. However, when the defendant's negligence is so apparent that a layperson can identify it, expert testimony will not be required. See, e.g., Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984) (Because the standard of care was regarded as within the common knowledge of a layman when the surgeon amputated the wrong leg, no expert testimony was required to establish the standard of care.).

Profit a Prendre

A profit (also known as a profit à prendre) is a nonpossessory right to enter another's land and remove specific natural resources (such as oil, gas, minerals, timber, or game). Profits are created and analyzed similarly to easements, except that profits cannot be created by necessity. Although a profit can be either exclusive or non-exclusive, most are construed as non-exclusive. If the profit is exclusive, then the holder of the profit has an unlimited and exclusive right to take the subject matter of the profit from the land. If the profit is non-exclusive, then the right to take the natural resource is either limited by quantity, time, or use, or it is shared with another. Exclusive rights may be assigned or otherwise transferred and apportioned, as long as the apportionment is not wholly inconsistent with the original agreement. Non-exclusive rights can be assignable or otherwise transferred, but apportionment is not permitted when the burden on the servient estate is increased. Under the "one stock" rule, the transferees are limited to the amount of material taken by the transferor (i.e., his "stock"), and this quantity is divided up by transferees taking the profit.

Promissory Estoppel as Substitute for Consideration

A promise is binding if: (1) The promisor should reasonably expect it to induce action or forbearance on the part of the promisee or a third person; (2) The promise does induce such action or forbearance; and (3) Injustice can be avoided only by enforcement of the promise.

Promises that Appear but are not illusory

A promise that is based on the occurrence of a condition within the control of the promisor may be illusory, but courts often find that the promisor has also promised to use her best efforts to bring about the condition. Restatement (Second) of Contracts § 76 cmt. d. Similarly, a promise to purchase goods upon the promisor's satisfaction with the goods is not illusory because the promisor is required to act in good faith. UCC § 1-304.

Promissory Estoppel and Statute of Frauds

A promise that the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and that does induce the action or forbearance is enforceable notwithstanding theStatute of Fraudsif injustice can be avoided only by enforcement of the promise. The remedy may be limited as justice requires. Restatement (Second) of Contracts § 139.

Statute of Frauds - Real Property

A promise to transfer or receive any interest in real property is within the Statute of Frauds. The Statute does not apply to the conveyance itself (which is governed by a separate statute), but it does apply to a contract providing for the subsequent conveyance of an interest in real property. The Statute of Frauds also applies to a promise to create an interest in real property, the assignment of a right to purchase real property, an option contract for the sale of an interest in real property, and a promise to give a mortgage or other lien as security. Although leases and easements, as property interests, are generally subject to the Statute of Frauds, a lease or easement for one year or less is usually not covered by the Statute. In addition, licenses and assignments of mortgages are typically not within the Statute.

Promissory restraint on real property

A promissory restraint is a promise by the property interest holder not to transfer the property interest. Such a restraint is enforceable by an injunction against the transferor/promisor to prevent the transfer or by a suit seeking damages from the transferor/promisor for having violated the promise. Such a restraint on a life estate can be valid.

Modification of a property division award

A property division under either approach is not modifiable because it is based on the parties' assets at the time of divorce. Changes in the parties' circumstances after divorce are not considered once the award has been entered.

Variance of Zoning Requirements

A property owner may also seek approval to use his property in a manner that is not in conformity with a zoning ordinance (i.e., a variance). To be entitled to a variance, the owner must establish that: (1) Compliance with the zoning ordinance would result in an unnecessary hardship; (2) The hardship arises from circumstances that are unique to the property; (3) The hardship was not created by the owner; (4) Granting the variance would be in keeping with the overall purpose of the ordinance; and (5) Granting the variance would not result in substantial harm to the general welfare.

Voluntary Termination of a zoning nonconformity

A property owner whose nonconforming use has been grandfathered may lose the right to use the property in that manner if the owner abandons the nonconforming use. Most states require both a voluntary cessation of the nonconforming use and an intent to abandon such use. E.g., City of Univ. Place v. McGuire, 30 P.3d 453 (Wash. 2001). Some states provide that the nonconforming use right terminates after a specific time period of nonuse (e.g., six months), regardless of intent. Purich v. Draper Props., 912 A.2d 598 (Md. 2006).

Involuntary termination of a zoning nonconformity

A property owner whose nonconforming use has been grandfathered may suffer termination of the nonconforming use due to natural forces (e.g., fire, flood). Although involuntary termination of a nonconforming use does not constitute abandonment, the zoning ordinance may deny the property owner the right to resume the nonconforming use after an involuntary termination. State ex rel. Brizes v. De Pledge, 162 N.E.2d 234 (Ohio Ct. App. 1958).

Public Nuisance gnerally

A public nuisance is an unreasonable interference with a right common to the general public. (Note: Public nuisance does not necessarily involve land, but it is included in this part of the outline because of its common historical roots with private nuisance.) Typical examples of public nuisance include air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public's use of parks or other public property. A private citizen has a claim for public nuisance only if she suffers harm that is different in kind from that suffered by members of the general public.

Public Nuisance - Real Property

A public nuisance is an unreasonable interference with the health, safety, or property rights of the community. To recover for a public nuisance, a plaintiff must show that he suffered a different kind of harm than that suffered by the rest of the community.

Defamation - Public Official

A public official is someone in the hierarchy of government employees who has, or appears to have, substantial responsibility for or control over the conduct of government affairs. Candidates for public office are also treated as public officials.

Purchase-Money Mortgage Priority

A purchase-money mortgage (i.e., a mortgage granted to a person, such as a seller or a lender, used to finance the purchase of the mortgaged property that is executed at the time of the sale) has priority over mortgages and liens created by or that arose against the purchaser-mortgagor prior to the purchaser?mortgagor's acquisition of the property, whether or not recorded. This priority of a purchase-money mortgage generally exists with respect to a judgment lien against the purchaser-mortgagor that pre-dates the purchaser?mortgagor's acquisition of the property and an after-acquired property clause in a mortgage of other property granted by the purchaser-mortgagor prior to the purchaser-mortgagor's acquisition of the property in question. A seller's purchase-money mortgage generally has priority over a purchase?money mortgage given to a third party (e.g., a lender) by a buyer to aid the buyer in acquiring the property from the seller. The priority of third?party purchase-money mortgages is determined chronologically, subject to any other applicable exception. Restatement (Third) of Property: Mortgages §§7.2, 7.5.

Notice Statute

A purchaser need only purchase without notice of the prior interest to prevail under a notice statute. (See infra for a discussion of what constitutes notice.) Notice statutes tend to protect subsequent purchasers against interest holders who could have but failed to record documents describing their interests.

Defamation - Qualified Privilege Abuse

A qualified privilege may be lost if it is abused. Generally, a privilege is abused by making statements outside the scope of the privilege or by acting with malice. Traditionally, the malice required was express malice—hatred, ill will, or spite. Today, most jurisdictions hold that actual malice, i.e., knowledge that a statement is false or acting with a reckless disregard as to the truth or falsity of the statement, will defeat a qualified privilege.

Race-Notice Statute

A race-notice statute requires a subsequent purchaser to take the interest without notice of a prior conflicting interest and be the first to record.

Liquidated Damages in Real Estate Contracts

A real property contract usually requires the buyer to make a deposit of a portion of the purchase price (sometimes referred to as "earnest money"). In addition, the contract typically contains a liquidated damages clause that provides for the seller to retain the buyer's deposit in the event that the buyer breaches the contract and refuses to purchase the property. In general, for a liquidated damages clause to be enforceable, the amount of liquidated damages must be reasonable. Traditionally, many courts have found a deposit of no more than 10 percent of the purchase price to be reasonable as a liquidated damages amount. However, courts may consider factors such as the sophistication of the buyer and the nature of the transaction (commercial versus residential) in determining the reasonableness of the seller's retention of the buyer's deposit. In addition, a court may refuse to enforce a liquidated damages clause when the seller suffers no actual loss.

Defamation - of or concerning the plaintiff

A reasonable person must believe that the defamatory communication refers to this particular plaintiff and holds him up to scorn or ridicule in the eyes of a substantial number of respectable members of the community. If the defamatory language applies to a group, then a member of the group can maintain a defamation action only if the group is so small that the matter can reasonably be understood to refer to that member, unless there is other evidence that the language refers to that particular member. A deceased individual cannot be defamed. A corporation, partnership, or unincorporated association may be defamed if the language prejudices it in conducting its activities or deters others from dealing with it.

Rebuttable presumptions

A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. Under the "bursting bubble" approach followed by the Federal Rules in a civil case, a presumption "bursts" (i.e., no longer has a preclusive effect) after the introduction of sufficient evidence by the opposing party to sustain a contrary finding. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, the burden of persuasion remains on the party who had it originally. While the presumption no longer has preclusive effect after the introduction of contrary evidence, a judge may instruct the jury that it may, but is not required to, draw the conclusion (e.g., a person is dead) from the basic facts (e.g., the person has been missing for seven years). Fed. R. Evid. 301.

Recording and Adverse Possession

A recording act does not protect a subsequent taker for value from a property interest acquired by operation of law, such as property acquired by adverse possession or prescriptive easement. Since generally such ownership arises automatically upon the expiration of the statutory period, there is no documentation to be recorded. Restatement (Third) of Property; Servitudes §7.14.

Contract Release

A release is a writing that manifests intent to discharge another party from an existing duty. For common-law contracts, the release must generally be supported by consideration to discharge the duty. Under the UCC, however, a claim or right can be discharged in whole or in part without consideration by a written waiver or renunciation signed and delivered by the aggrieved party. No consideration is needed to support the release.

Contingent Remainder

A remainder is contingent if it is created in a grantee that is unascertainable, or if it is subject to an express condition precedent to a grantee's taking. This situation normally occurs in one of two circumstances: (i) when the property cannot vest because the beneficiary is unknown or (ii) when the property cannot vest because the known beneficiary is subject to a condition precedent that has not yet occurred.

Appealing Remand After Removal

A remand order is generally not reviewable on appeal or otherwise, with the following exceptions: i) There is statutory exception for an order remanding a civil rights case removed pursuant to § 1443; or ii) A remand order is also appealable in a class action, if the application for review is made to the court of appeals not more than ten days after the entry of the order.

Reply

A reply is a response by the plaintiff to a defendant's answer. It can also be a response by a defendant to a plaintiff's counterclaim answer, a third-party answer, or a cross-claim answer.

Court Order of Reply

A reply is made only when the court orders it. Rule 7(a)(7).

Requirements and output contracts

A requirements contract is a contract under which a buyer agrees to buy all that he will require of a product from the other party. An output contract is a contract under which a seller agrees to sell all that she manufactures of a product to the buyer. There is consideration in these agreements because the promisor suffers a legal detriment. The fact that the party may go out of business does not render the promise illusory.

Permissible restraints on real property

A restraint that is limited in time and purpose may be valid. In addition, a right of first refusal, which gives the holder of the right the opportunity to purchase the property interest if sold, is usually upheld, as are restrictions on the transfer of a lease (e.g., a prohibition on assignment). Other permissible restraints are those found in commercial transactions when the basis for the restraint is found in the parties' contractual obligations.

Restraints on Equitable Interests of property

A restriction on the transferability of an equitable property interest (e.g., a beneficial property interest held in trust), such as a spendthrift clause, is valid.

Future Interest - Reversion

A reversion (or "reverter") is the future interest held by the grantor who grants a life estate or estate for years but does not convey the remaining future interest to a third party. Reversions are not subject to the Rule Against Perpetuities.

Option Contracts and Right of First Refusal and Marketable Title

A right of first refusal as well as an option contract can constitute an encumbrance that prevents the seller of property from providing marketable title.

Right of First Refusal

A right of first refusal is a preemptive right that gives its holder the opportunity to acquire property prior to its transfer to another, and it is valid unless it is unreasonable. The right may be limited in various ways, such as the time period during which the right exists, the transactions to which it applies, and its transferability to another person.

Right of Reentry

A right of reentry (also called "right of entry" or "power of termination") is a future interest held by the grantor after a fee simple subject to a condition subsequent is granted.

Transferee's Rights in sale of collateral

A sale of the collateral gives the buyer at the sale all of the debtor's rights in the collateral. If the transferee/buyer acts in good faith (i.e., honesty in fact and the observance of reasonable commercial standards of fair dealing), then the disposition discharges the security interest being foreclosed and any subordinate security interests and liens, even though the secured party fails to comply with Article 9. However, the transferee takes the collateral subject to any security interests that were senior to the security interest foreclosed. UCC §§ 1-201(20), 9-617, incl. cmts. 2, 3.

Secured Party Liability to Unknown Debtor

A secured party does not owe a duty to a person that the secured party does not know is a debtor or an obligor. Similarly, a secured party does not owe a duty to a debtor or an obligor of whose existence the secured party is aware, but whose identity the secured party does not know, or with whom the secured party does not know how to communicate. UCC §§ 9-604; 9-628.

Notice of Disposition of Collateral

A secured party is generally required to send an authenticated notification of disposition. The notification is required to be reasonable as to its content, the manner in which it is sent, and its timeliness. UCC § 9-611(b), incl. cmt. 2. Notification of disposition is required to be sent to (i) the debtor, (ii) any secondary obligor, and, in the case of non-consumer goods, (iii) any other secured party or lien holder who held a security interest that was perfected by filing or pursuant to a statute, and (iv) any other party from whom the secured party has received authenticated notice of a claim or interest in the collateral. UCC § 9-611(a), (c).

Exceptions to notification of disposition of collateral

A secured party is not required to send a notice of disposition when: i) The collateral is perishable or threatens to decline speedily in value; ii) The collateral is of a type customarily sold on a recognized market; or iii) The persons entitled to notification waive the right to notification. Waiver of the right to notification (item iii above) can be done only after a default has occurred. Such a waiver cannot be oral but must be manifested by an authenticated agreement. UCC § 9-624(a).

Replevin and Breach of the Peace

A secured party is required to use judicial process (e.g., a replevin action) to obtain possession of the collateral unless possession can be obtained without breach of the peace. "Breach of the peace" is not defined by Article 9, but it is left up to court interpretation. Courts are split on whether trickery constitutes breach of the peace.

Secured Party

A secured party is the person in whose favor a security interest is created under the security agreement. Usually, the secured party is the person who has loaned money or extended credit to the obligor. A secured party may also include a consignor; the buyer of accounts, chattel paper, payment intangibles, or promissory notes; or the holder of an agricultural lien. UCC § 9-102(a)(72).

Partial Satisfaction of an obligation by acceptance of collateral

A secured party may accept collateral in partial satisfaction of an obligation secured by the collateral if the debtor consents, after default, to the acceptance in an authenticated record. UCC § 9-620(a)-(c).

Public vs. Private Disposition of Collateral

A secured party may dispose of the collateral publicly or privately. A secured party may purchase the collateral at a public sale, but she cannot do so at a private sale unless the collateral is of a kind that is customarily sold on a recognized market (e.g., the New York Stock Exchange) or the subject of widely distributed standard price quotations. A secured party cannot purchase the collateral at a private sale when the prices are individually negotiated or when items are not fungible in a recognized market. UCC § 9-610(c), incl. cmts. 7, 9.

Perfection by Possession

A secured party may perfect a security interest in most collateral by taking possession of the collateral. As a general rule, this security interest remains perfected only while the secured party retains possession. UCC § 9-313(a). Except for money, collateral that may be perfected by possession may also be perfected by filing. Perfection by filing does not require the secured party to be also in possession of the collateral. Goods, instruments, negotiable documents, money, and tangible chattel paper are the only types of collateral that may be perfected by possession. A security interest in money may be perfected only by possession. A certificated security may be perfected by the secured party taking delivery of the security. UCC § 9-313(a).

Perfection by Control

A secured party may perfect a security interest in specific collateral by taking control of the collateral. The security interest remains perfected only while the secured party retains control. UCC § 9-314(a). Perfection by control of the collateral may only be achieved with respect to a security interest in investment property, deposit accounts, letter-of-credit rights, electronic chattel paper, or electronic documents. Gaining control for purposes of attachment also suffices for purposes of perfection. UCC §§ 9-312(a), 9-314(a).

Non-cash proceeds from disposition of collateral

A secured party must apply or pay over for application non-cash proceeds of a disposition only if the failure to do so would be commercially unreasonable. If the secured party does apply or pay over for such proceeds, then he must do so in a commercially reasonable manner. UCC §§ 9-608(a)(3); 9-615(c).

Cash Proceeds from Disposition of Collateral

A secured party must apply, or pay over for application, cash proceeds of a disposition in the following order: i) Reasonable expenses for collection and enforcement, including reasonable attorney's fees and other legal expenses to the extent permitted by agreement and not prohibited by law; then ii) Satisfaction of obligations secured by the security interest or agricultural lien; then iii) Satisfaction of any subordinate security interests, provided that the junior secured party made an authenticated demand for proceeds before distribution of the proceeds is complete; then iv) The remainder of the proceeds to the debtor.

Security Agreement by Possession

A secured party's possession of tangible (e.g., goods) or quasi-intangible (e.g., chattel paper) collateral satisfies the Article 9 Statute of Frauds. However, the secured party's possession must be pursuant to the security agreement. UCC § 9-203(b)(3)(B), (C).

Authentication of a security agreements

A security agreement must be authenticated by the party against whom it may be enforced (i.e., the debtor). The most common method of authentication is for the debtor to sign or execute the record that evidences the security agreement. A complete signature is not necessary. The question always is whether the symbol was executed or adopted by the debtor with the present intention to adopt or accept the record. UCC §§ 9-102(a)(7); 9-203(b)(3)(A).

Security Agreement as Financing Statement

A security agreement usually contains more information than is required of a financing statement. Consequently, a security agreement that contains the information necessary for a financing statement may be filed as a financing statement to perfect a security interest.

Investment Property, Deposit Accounts, Letter of Credit Rights priority

A security interest held by a secured party having control of investment property, a deposit account, or letter of credit rightshas priority over a security interest held by a secured party that does not have control of the collateral. UCC §§ 9-327—329.

Perfecting Deposit Account by control

A security interest in a deposit account can be perfected only by control. UCC § 9-312(b)(1). A secured party has control of a deposit account if: i) The secured party is the bank with which the deposit account is maintained; ii) The bank, secured party, and debtor agreed in writing to follow the instructions of the secured party; or iii) The secured party becomes the bank's customer with respect to the deposit account.

Accessions and priority

A security interest in an accession is usually subject to general priority rules. Such a security interest, however, is subordinate to a security interest in the whole collateral that is perfected under a certificate-of-title statute. UCC § 9-335(c), (d). After default, a secured party may remove an accession from other goods if the security interest in the accession has priority over the claims of every person having an interest in the whole. A secured party that removes an accession from other goods must reimburse the holder of a security interest or the owner of the whole or other goods for physical injury to the whole or other goods, apart for the diminution in value of the whole or other goods caused by the absence of the removed accession or by any necessity for replacing it. UCC § 9-335(e), (f).

Perfection by Filing

A security interest in any collateral, except a deposit account, money, or letter-of-credit rights that are not a supporting obligation, may be perfected by filing a financing statement. Filing is the most common method of perfection. The primary objective of filing is to give interested parties notice of the existence of the security interest. UCC §§ 9-310(a); 9-312(b). A security interest in money may be perfected only by possession. A deposit account or letter-of-credit rights that are not a supporting obligation may be perfected only by control.

Attachment by Proceeds

A security interest in collateral automatically attaches to identifiable proceeds. UCC §§ 9-203(f); 9-315(a)(2). The term "proceeds" means: i) Whatever is acquired upon the sale, lease license, exchange, or other disposition of collateral; ii) Whatever is collected on, or distributed on account of, collateral; iii) Rights arising out of collateral; iv) To the extent of the value of collateral, claims arising out of the loss, nonconformity or interference with the use of, defects or infringement of rights in, or damage to, the collateral; and v) To the extent of the value of collateral and to the extent payable to the debtor or the secured party, insurance payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage to, the collateral.

Security Interest in fixtures vs. judicial lien

A security interest in fixtures has priority over a subsequent judicial lien on the real property with which the fixtures are associated if the security interest in fixtures was perfected by any method. The method of perfection is not limited to a fixture filing; the judicial creditor who seeks a lien is not a reliance creditor who has searched the real property records. UCC § 9-334(e)(3).

Perfecting Letter-of-Credit Rights by control

A security interest in letter-of-credit rights, if such rights are a supporting obligation for other collateral (e.g., chattel paper) is perfected by the perfection of the security interest in the other collateral. Otherwise, perfection of a security interest in letter-of-credit rights may be perfected only by control. UCC § 9-312(b)(2).

Temporary Perfection by Proceeds

A security interest in proceeds enjoys temporary perfection and may also be entitled to indefinite automatic perfection. This perfection occurs even though the financing statement does not specifically mention proceeds. UCC § 9-315(c), (d). If the security interest in the original collateral is perfected, then a security interest in proceeds is temporarily perfected for 20 days from the time it attaches. UCC §9-315(c), (d).

Security Interest

A security interest is generally an interest in personal property or fixtures that secures payment or performance of an obligation. UCC § 1-201(35). The purpose of a security interest is to: i) Make the debt more easily collectible if the debtor cannot or refuses to pay the obligation; ii) Provide the secured party with a position superior to other creditors who might attempt to obtain the same collateral to secure or collect their debts; and iii) Provide the secured party with rights to obtain the collateral if it is sold or otherwise transferred to a third party.

Timing of Perfection

A security interest is perfected upon (i) attachment of that interest and (ii) compliance with one of the methods of perfection. Although typically the security interest attaches and is then perfected, if the necessary steps for perfection are taken prior to attachment (e.g., the secured party files a financing statement that covers after-acquired property), then the security interest is perfected upon attachment. In addition, a security interest that is perfected by one method and later perfected by another method without a lapse in perfection is continuously perfected despite the change in method. The date of perfection is the date on which the security interest first became perfected. UCC §§ 9-308(a); 9-502(d).

After-Acquired Collateral

A security interest may apply not only to the collateral that the debtor owns at the time the security is granted, but also to collateral that the debtor acquires in the future. No new security agreement is necessary when the collateral is acquired later if the original security agreement provides that it applies to after-acquired collateral. If, for example, the collateral is inventory, then the description of the collateral will be something like "all inventory now owned or hereafter acquired." UCC § 9-204(a). When the parties have left out after-acquired language in situations that suggest they intended to include it (e.g., when the collateral is of a type that is self-liquidating, such as inventory or accounts), the courts are split on whether to imply it, but the majority of courts do consider it implied.

Advances and priority

A security interest that secures an advance is subordinate to the rights of a person who becomes a lien creditor when the advance is made more than 45 days after the person becomes a lien creditor, unless the advance is made without knowledge of the lien or made pursuant to a commitment entered into without knowledge of the lien. Note that when the advance is made within the 45-day time period, knowledge of the lien does not prevent the holder of a security interest from having priority over the lien creditor. UCC § 9-323(a), (b).

Remedy of Stoppage of Goods In Transit

A seller can stop the goods in transit because of the buyer's breach; goods can be stopped in transit only if shipped in large-sized (e.g., carload, truckload) lots. The seller cannot stop goods in transit once the: (1) Buyer has received the goods; (2) Carrier or warehouseman has acknowledged the buyer's rights; (3) Goods have been reshipped by the carrier; or (4) Title has been given to or negotiated with the buyer. UCC § 2-705(1),(2). If the buyer becomes insolvent before the delivery of the goods, then the seller can stop goods in transit and refuse delivery except for cash. UCC§2-705(1).

Strict Product Liability - Services

A seller that provides both products and services generally is liable if the defective product is consumed, such as food at a restaurant, but not if the product is only used, such as the vendor of a balloon ride when the balloon itself is defective. Hospitals and doctors generally are treated as providing a service, rather than a product, in cases in which the defective product is used as a tool, loaned to the patient, or even implanted in the patient.

Shipment Under Reservation

A seller who ships by carrier under a contract that does not specify the method or form of payment may send the goods under reservation, meaning that the carrier will hold the goods until the buyer pays. This is accomplished by the seller's obtaining a negotiable or nonnegotiable bill of lading.

Employee Agent

A servant (often referred to as an employee) is an agent who is subject to the principal's control with respect to the physical conduct of the employee's performance. Generally, employees are paid hourly or by time periods (e.g., weekly, biweekly, monthly). Their work is an integral part of the work of the employer, tasks are generally completed under the employer's direction, and employees are employed for long periods of time with the same employer. The more control an employer exerts over an agent's day-to-day activities, the more likely the agent qualifies as an employee.

Shareholder derivative suits

A shareholder may bring a derivative action on behalf of the corporation to enforce a right of the corporation that the corporation has failed to enforce. While not generally subject to the rules with regard to a class action, the shareholder must represent the shareholders of the corporation fairly and adequately. The shareholder is bound to plead with particularity that he made a demand on the directors, and, if state law requires, also a demand on the shareholders, or if a demand is not made, he must state why. He must also assert his status as a shareholder at the time the transaction occurred or that he subsequently gained this status by operation of law (e.g., by inheritance). Finally, he must allege that the action is not a collusive effort to impart jurisdiction on the court. If a corporation displays animus to the plaintiffs, then it must be named on the complaint. Otherwise, the court will join the corporation as a defendant to indicate the corporation's animus. Further, the settlement or dismissal of a derivative suit must be approved by the court. In the case of a settlement, the amount awarded is measured by the damages the corporation suffered. Rule 23.1

Shifting Executory Interest

A shifting executory interest divests the interest of the grantee by cutting short a prior estate created in the same conveyance. The estate "shifts" from one grantee to another on the happening of the condition.

False Imprisonment - Shopkeeper's Privilege

A shopkeeper's reasonable (in both duration and manner) detention of a suspected shoplifter is not an invalid use of authority and hence is not a false imprisonment. Furthermore, a court may find that the defendant has confined the plaintiff when he has refused to perform a duty to release the plaintiff from an existing confinement or provide a means of escape.

Conduct of the Closing

A slight majority of states do not require an attorney to conduct a settlement (i.e., closing). In re Op. No. 26 of the Comm., 654 A.2d 1344 (N.J. 1995) (if notice is provided, the closing may be conducted by the real estate agent or broker or by an officer of a title insurance company instead of an attorney). However, although a non-attorney may conduct a settlement, the non-attorney may not answer legal questions that arise or otherwise give legal advice. Countrywide Home Loans, Inc. v. Ky. Bar Ass'n, 113 S.W.3d 105 (Ky. 2003).

Special Appearance - Personal Jurisdiction

A special appearance is a procedure by which a defendant appears before a court for the specific purpose of challenging personal jurisdiction. The defendant is generally not considered to have consented to jurisdiction by making the special appearance, as long as personal jurisdiction is contested in the defendant's initial pleading. If anything going to the merits of the case is raised in the pleadings, then the defendant will likely be found to have made a general appearance in the case and waived any objection with regard to personal jurisdiction. Under the Federal Rules of Civil Procedure, special appearances have been abolished, but a party may make a motion to dismiss the claim for lack of personal jurisdiction under Rule 12(b)(2) without becoming subject to jurisdiction on that basis. If the court overrules a defendant's objection to personal jurisdiction, most states permit the defendant to defend the case on the merits and still preserve the objection to personal jurisdiction as an issue for appeal.

Special jury verdict

A special verdict is a written finding made by the jury on each issue of ultimate fact. The court submits written questions to the jury correlating to each ultimate fact of the case and asks the jury to make a finding on each fact (e.g., "Was the defendant negligent?"). The court may specifically direct the jury's response to a question (e.g., "Yes or No") or may permit the jury to respond with a brief answer (e.g., the percentage of a defendant's fault in a negligence action). The judge then determines the legal consequences of those findings. Rule 49(a)(1). Even in a case based on diversity jurisdiction, the court is not bound by a state law that requires the use of a special verdict. Notes of Advisory Committee on Rule 49.

Special Warranty Deed

A special warranty deed contains the same covenants of title but only warrants against defects arising during the time the grantor has title.

Notice in Recording

As discussed supra, only purchasers who give value in good faith and without notice of a prior claim will prevail in notice or race-notice jurisdictions. "Notice" can be actual, by inquiry, or constructive.

Specific denial in Answer

A specific denial is a denial of a particular paragraph or allegation in the complaint or other claim for relief (e.g., counterclaim, cross-claim, etc.). A party can respond to each paragraph of the complaint by either denying the allegation in the paragraph, admitting it, pleading insufficient knowledge to either admit or deny it, or admitting part of the allegation and either denying or pleading insufficient knowledge as to the rest.

Springing Executory Interest

A springing executory interest divests the interest of the grantor or fills a gap in possession in which the estate reverts to the grantor.

Contract Offer and Intent

A statement is an offer only if the person to whom it is communicated could reasonably interpret it as an offer. It must express the present intent of a person to be legally bound to a contract. As noted above, the primary test of whether a communication is an offer is based on the objective theory of contracts; i.e., whether an individual receiving the communication would believe that he could enter into an enforceable deal by satisfying the condition.

Statutory Lien Creditor Priority

A statutory or common-law lien creditor is a creditor who obtains a possessory lien on the property of another by operation of a statute or common-law rule. Unlike an Article 9 security interest, these are nonconsensual liens. A statutory or common-law lien has priority over a security interest, including a perfected security interest, in goods, provided: i) The effectiveness of the lien depends on the lien holder's possession of the goods; and ii) The lien secures payment or performance of an obligation for services or materials furnished with respect to goods by the lien holder in the ordinary course of that person's business (e.g., supplier's lien, mechanic's lien). When the lien is statutory and the statute creating the lien expressly provides a different priority rule, such as subordination of the possessory lien to security interests, that rule governs. UCC §§ 9-317(a)(2), 9-333(b).

Liens under Article 9

A statutory or common-law lien for services or materials (e.g., a mechanics lien) is not subject to Article 9, except for the rule regarding the priority of such a lien. See §IV.B.3. Statutory or Common-Law Lien Creditor, infra. Similarly, a landlord's lien, which arises from an interest in real estate rather than personal property, is not subject to Article 9. UCC § 9-109(d)(1), (2).

Subagent generally

A subagent is a person appointed by an agent to perform functions that the agent has agreed to perform on behalf of a principal. The agent is liable to the principal for the conduct of the subagent. When an appointing agent hires employees, those employees are presumed to be subagents of the appointing agent, acting on behalf of the appointing agent's principal.

Duty of subagent

A subagent owes a duty of loyalty to the principal as well as to the appointing agent.

Subsequent Assignment of Assigned Contract

A subsequent assignment of the same right revokes any prior revocable assignment. If the first assignment was an irrevocable assignment, then the first assignee will have priority over the second assignee, unless the second assignee is a bona fide purchaser for value without notice of the first assignment, in which case the assignee who obtains payment from the obligor or judgment first will have priority. If the second assignee knows about a prior assignment, then he is estopped from asserting a claim over the first assignee even if he would have otherwise prevailed.

Notice requirement for covenants running with the land

A subsequent purchaser without notice of a burdening covenant is not bound by it if protected by the recording act. Remember that notice can be implied (recorded in the chain of title) as well as actual (awareness that the covenant exists).

Private Nuisance - Substantial Interference

A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. Conversely, a "thick-skinned" plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected.

Fees and expenses if motion to compel is granted

A successful movant is entitled to recover her reasonable expenses incurred in connection with the motion, including reasonable attorney's fees. The court may order the opposing party, his attorney who advised the refusal of disclosure or discovery, or both to pay the expenses. Rule 37(a)(5)(A). Expenses cannot be awarded if: i) The movant failed to make a good-faith effort to secure the information before filing the motion; ii) The opposing party demonstrates that his nondisclosure, response, or objection was substantially justified; or iii) Other circumstances render unjust an award of expenses.

Temporary Restraining Order in general

A temporary restraining order ("TRO") preserves the status quo of the parties until there is an opportunity to hold a full hearing on the application for a preliminary injunction. This interlocutory injunction may remain in effect only a limited number of days, to be set by the court, and no longer than 14 days unless good cause exists or by consent of the adversary. Rule 65(b)(2).

Tenancy at Sufferance

A tenancy at sufferance (holdover tenancy) is the period of time after the expiration of a lease during which the tenant remains on the premises without the landlord's permission. A tenancy at sufferance is terminated if the tenant vacates the premises or the landlord evicts the tenant. In such case, the tenant is obligated to pay the reasonable value of his use and occupancy of the premises, which typically is a daily rate determined by reference to the previous rent. In addition, the tenant is liable for reasonably foreseeable special damages that result from his holding over, such as the cost of evicting the tenant. Alternatively, the landlord can terminate the tenancy at sufferance by binding the tenant to a new tenancy.

Creation of Tenancy at Will

A tenancy at will can be created by the express agreement of the parties or by implication if a person is allowed to occupy the premises, such as when the parties are negotiating a lease. Note that, unless this tenancy is expressly created, the payment of rent by the tenant converts a tenancy at will into a periodic tenancy.

Tenancy at Will

A tenancy at will is a leasehold estate that does not have a specific term and continues until terminated by either the landlord or the tenant.

Tenancy for Years

A tenancy for years is an estate measured by a fixed and ascertainable amount of time. A tenancy for years may be any length of time (e.g., one week, six months, five years).

Creation of Tenancy for Years

A tenancy for years is created by an agreement between the landlord and the tenant. The Statute of Frauds applies to a tenancy for years that is longer than one year; such agreements must be in writing. A lease subject to the Statute of Frauds is voidable until the tenant takes possession and the landlord accepts rent from the tenant.

Partition in Concurrent Estates

A tenant in common or a joint tenant generally has the right to unilaterally partition the property, but a tenant by the entirety does not have this right. Property can be partitioned either voluntarily (if the co-tenants agree in writing on the division of land) or involuntarily (by court action). The holder of a future interest who shares that interest with another (e.g., jointly held remainder interest) does not have the right to immediate possession and therefore cannot maintain an action for involuntary partition.

Tenant Contractual Duties generally

A tenant may have other contractual duties, such as a duty to avoid excessive noise or to use the premises only for a specified type of business. In addition, a tenant who uses the premises for illegal purposes on a regular basis (e.g., drug distribution) may violate an implied duty. Violation of such duties can give the landlord the right to terminate the lease.

Battle of the Forms - "Materially Alters"

A term that results in surprise or hardship if incorporated without the express awareness by the other party materially alters the original contract. Examples of terms found to have materially altered the original contract include a warranty disclaimer, a clause that flies in the face of trade usage with regard to quality, a requirement that complaints be made in an unreasonably short time period, and other terms that surprise or create hardship without express awareness by the other party. Terms that usually do not materially alter the contract include fixing reasonable times for bringing a complaint, setting reasonable interest for overdue invoices, and reasonably limiting remedies. UCC § 2-207 cmts. 4,5.

Third-Party Beneficiary Contracts

A third-party beneficiary contract results when the parties to a contract intend that the performance by one of the parties is to benefit a third person who is not a party to the contract.

Impleader and subject matter jurisdiction

A third-party claim must fall within the federal court's subject matter jurisdiction. Because, by definition, a third-party claim will be closely related to the original claim, the court generally will have supplemental jurisdiction over the matter. If the original claims are based exclusively on diversity jurisdiction, however, under §1367(b), supplemental jurisdiction will not apply to claims by the plaintiff against a third-party defendant brought in under Rule 14. Such claims need to meet diversity or federal question jurisdiction requirements on their own.

Counterclaim by Third Party

A third-party defendant may file a counterclaim against either an original defendant or an original plaintiff. Whether a third-party defendant's counterclaim is classified as compulsory or permissive is governed by the requirements of Rule 13(a)-(b). Pursuant to Rule 13(h), new parties to a counterclaim may be joined as long as they meet the requirements for joinder under Rule 20. New parties must be joined if they are indispensable parties under Rule 19.

Unconstitutional time limit on a paternity petition

A time limit on the filing of a paternity petition in order to secure support from the purported father is invalid unless there is a reasonable opportunity to pursue such an action and the limit is substantially related to the government's interest in restricting such an action (e.g., prevention of fraudulent claims). Otherwise, the time limit is a violation of the Equal Protection Clause of the U.S. Constitution because it subjects illegitimate children to restrictions not imposed on legitimate children. Pickett v. Brown, 462 U.S. 1 (1982). The suit may be brought by the child or the child's mother. The standard of proof varies by jurisdiction, but it could be as low as preponderance of the evidence or as high as clear and convincing proof.

Lease Creating A Security Interest

A transaction in the form of a lease is treated as creating a security interest if the lessee must pay consideration to the lessor for the right to possess and use the goods for the term of the lease, the payment obligation cannot be terminated by the lessee, and one of the following four conditions is also met: i) The original term of the lease is equal to or greater than the remaining economic life of the goods; ii) The lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become owner of the goods; iii) The lessee has an option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal additional consideration upon compliance with the lease agreement; or iv) The lessee has an option to become the owner of the goods, for no additional consideration or nominal additional consideration, upon completion of the lease agreement.

Conveyance of property by will generally

A transfer of ownership of real property at death through a will can take effect through a specific devise (e.g., "I leave my residence to my son") or a residuary clause (e.g., "I leave all other property to my daughter") when the property is not specifically mentioned in the will. When a decedent does not leave a valid will or the will does not specify a taker of the real property, the property is transferred pursuant to the applicable state law of intestate succession. While the intestacy rules vary by state, preference is typically given to the decedent's immediate family (e.g., spouse, children). When a decedent has no heir, as determined under state law, the property typically escheats to the state.

Transferee of Money or Funds and priority

A transferee of money usually takes the money free of a security interest. Similarly, a transferee of funds from a bank deposit account usually takes the funds free of a security interest in the deposit account. Note that a debtor is not treated as a transferee. UCC § 9-332. A transferee is not entitled to this favorable treatment if the transferee acts in collusion with the debtor in violating the rights of the secured party. UCC § 9-332, incl. cmt. 2.

Negligence - Trespassers

A trespasser is one who enters or remains upon the land of another without consent or privilege to do so.

Review of discretionary rulings

A trial court's ruling on discretionary matters, such as the admissibility of evidence, sanctions for violation of discovery rules, or the granting or denial of a motion, is subject to review under the abuse of discretion standard. GE v. Joiner, 522 U.S. 136 (1997).

Article 9 Leases

A true lease of goods is governed by Article 2A. Leases are covered under Article 9 only when the transaction, although in the form of a lease, is in economic reality or substance a secured transaction. It is generally determined on a case-by-case basis not by the parties' characterization of the transaction but by the economic reality of the transaction. UCC § 1-201(35).

Trustee Agent

A trustee is an agent and is subject to the control of the settlor of the trust or one or more of its beneficiaries. A trustee maintains a fiduciary relationship with and holds property for the benefit of the settlor. Restatement (Third) of Agency § 1.04(10) (2006).

Acceptance of Unilateral Contract

A unilateral contract is one in which one party promises to do something in return for an act of the other party (e.g., a monetary reward for finding a lost dog). Unlike in a bilateral contract, in a unilateral contract, the offeree's promise to perform is insufficient to constitute acceptance. Acceptance of an offer for a unilateral contract requires complete performance. Once performance has begun, the offer is irrevocable for a reasonable period of time to allow for complete performance unless there is a manifestation of a contrary intent. However, the offeree is not bound to complete performance. In addition, while the offeror may terminate the offer before the offeree begins to perform, expenses incurred by the offeree in preparing to perform may be recoverable as reliance damages. Restatement (Second) of Contracts § 45.

Zoning Use Variances

A use variance is sought to obtain the right to use the property in a manner not permitted by the zoning ordinance (e.g., operating a business in a residential neighborhood). A reduction in the value of the property as a consequence of being unable to use it in the manner sought is not sufficient to justify a use variance. In fact, the absence of any reasonable permitted use is sometimes required before a use variance is granted.

Contents of the deed

A valid deed must include all necessary terms: the identity of the grantor and the grantee, words of transfer, a description of the property interest being transferred, and the grantor's signature. Unlike in a contract, consideration is not required.

Ending a marriage generally

A valid marriage, including a common-law marriage, can be terminated only by annulment, divorce, or death.

Rejection of nonconforming goods under UCC

A valid rejection requires that the buyer: (1) Give notice to the seller; (2) Within a reasonable time; and (3) Before acceptance. UCC § 2-602. Upon a rightful rejection, the buyer is entitled to a return of any payments made on the goods. UCC § 2-711(3). The buyer must retain possession of rejected goods for a reasonable time to allow for the seller to reclaim them. UCC § 2-602(2).

Jury Verdicts

A verdict is a formal decision rendered by a jury at the conclusion of a trial. The jury verdict must be unanimous unless the parties stipulate otherwise. Rule 48(b). The verdict must be returned by a jury of at least six members unless the parties stipulate otherwise. Rule 48(b).

Vested Remainder

A vested remainder is an interest that is not subject to any conditions precedent and is created in an ascertainable grantee.

Vested Remainder Subject to Complete Divestment

A vested remainder subject to divestment indicates that the occurrence of a condition subsequent will completely divest the remainder interest.

Void Contracts

A void contract results in the entire transaction being regarded as a nullity, as if no contract existed between the parties.

Void Marriage

A void marriage is treated as if it never happened. It does not need to be judicially dissolved and will not be legally recognized for any purpose. UMDA § 208.

Voidable Contracts

A voidable contract operates as a valid contract, unless and until one of the parties takes steps to avoid it.

Voidable Marriage

A voidable marriage is valid until one spouse seeks to legally void the marriage. There must be a judicial decree to dissolve the marriage. Grounds for a voidable marriage include age, impotence, intoxication, and fraud or duress. UMDA § 208.

Voluntary dismissal with prejudice and res judicata

A voluntary dismissal "with prejudice" is treated as a judgment on the merits and will have a preclusive effect in the court that issued the order of dismissal. A dismissal on the merits under Rule 41(b) will bar a plaintiff from refiling the claim only in the same federal court, not in state court. Semtek, supra.

Voluntary dismissal without prejudice and res judicata

A voluntary dismissal "without prejudice" expressly reserves the right to sue again on the same claim in the same court as long as the statute of limitations has not expired. Unless the notice of dismissal states otherwise, a voluntary dismissal will be "without prejudice." Rule 41(a)(1)(B).

Voluntary dismissal of counterclaim, cross-claim, or third party claim

A voluntary dismissal of a counterclaim, cross-claim, or third-party claim must be made before a responsive pleading is served or, if there is no responsive pleading, before evidence is introduced at a hearing or trial.

Implied Warranty of Merchantability

A warranty of merchantability is implied whenever the seller is a merchant. To be merchantable, goods must be fit for their ordinary purpose and pass without objection in the trade under the contract description. A breach of this warranty must have been present at the time of the sale. UCC § 2-314. Unless the circumstances indicate otherwise, the warranty can be disclaimed by use of "as is," "with all faults," or similar language that makes plain that there is no implied warranty. The disclaimer may be oral, but it must use the term "merchantability" and must be conspicuous if in writing. UCC § 2-316. If the buyer, before entering into the contract, has examined the goods or a sample or model as fully as the buyer desires, or has refused to examine the goods, then there is no implied warranty with respect to defects that an examination ought to have revealed to the buyer. UCC § 2-316(3).

Implied Warranty of Fitness For A Particular Purpose

A warranty that the goods are fit for a particular purpose is implied whenever the seller has reason to know (from any source, not just from the buyer) that the buyer has a particular use for the goods, and the buyer is relying upon the seller's skill to select the goods. UCC § 2-315. Note that the seller need not be a merchant for this implied warranty to apply. An implied warranty of fitness for a particular purpose can be disclaimed by general language (including by the use of "as is"), but the disclaimer must be in writing and be conspicuous. UCC § 2-316(2).

Wild Animals

A wild animal is an animal that, as a species or a class, is not by custom devoted to the service of humankind in the place where it is being kept. For example, a wild elephant that has been tamed and exhibited as part of a circus remains categorized as a wild animal. Many states have passed legislation to protect those who display wild animals to the public (e.g., a public zoo), applying a negligence standard instead of strict liability.

Writing Requirements in Agency Relationships

A writing is generally not necessary to create an agency relationship. In some jurisdictions, statutes require that the principal's authorization of the agent be in writing and comply with specific requirements. The most common example is when the agent contracts to sell or buy real property. When a statute requires the principal's authorization to be in writing, the requirement is often referred to as the "equal-dignities rule," i.e., the authorization must be of equal dignity to the underlying transaction. The equal-dignities rule operates to protect the principal against third-party actions. Therefore, a principal can raise the lack of written authorization as a defense. It does not apply in a contract action brought by a principal against a third party or in an action brought by an agent against the principal. Restatement (Third) of Agency § 3.02, cmt. b (2006).

Fourteenth Amendment Equal Protection Challenge to Zoning

A zoning ordinance that discriminates against a suspect class (e.g., race, national origin) is subject to strict scrutiny. However, for the challenger to establish discrimination, the ordinance must have a discriminatory purpose or intent; it is not sufficient for a challenger to show a discriminatory effect. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977) (denial of a rezoning request to permit multiple-family, subsidized housing was sustained absent a showing of discriminatory purpose or intent). Although persons who are disabled do not constitute a quasi-suspect class, the requirement that a group home for mentally disabled persons obtain a special?use permit when a similar permit was not required of other multiple-resident dwellings lacked a rational relationship to a legitimate purpose. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985).

First Amendment Free Speech Challenge to Zoning

A zoning ordinance that restricts the location of adult entertainment businesses but does not outright ban such businesses does not violate the First Amendment's Free Speech Clause. The government has a substantial interest in regulating the secondary effects that result from the operation of these businesses, such as increased crime. Renton v. Playtime Theatres, 475 U.S. 41 (1986). By contrast, an ordinance that prohibited a resident from displaying a sign with a political message in her front yard violated the First Amendment's Free Speech Clause. City of Ladue v. Gilleo, 512 U.S. 43 (1994).

Zoning and Covenants

A zoning restriction establishes a "ceiling" beyond which a private covenant cannot go, but it does not set a "floor" below which a private covenant cannot go.

Strict Liability - Abnormally Dangerous Prima Facie

Abnormally dangerous means that an activity: (1) Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (2) The activity is not commonly engaged in. In addition to these requirements, in evaluating whether an activity is abnormally dangerous, courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community.

Permissive Removal of Fixtures

Absent an agreement to the contrary, a non-freehold tenant, such as a tenant under a tenancy for years or a periodic tenancy, can remove a fixture that the tenant has attached to the leased property if (i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time. If the leased premises cannot be restored to its former condition, then the tenant can remove the fixture only with the consent of the landlord. This rule generally applies to commercial tenants and the removal of trade fixtures, as well as to residential tenants and the removal of personal items, such as bookshelves attached to the wall. Restatement (Second) of Property: Landlord and Tenant § 12.2(4), (5). A reasonable time for removal generally does not extend beyond the termination of the lease, but it may do so when (i) the termination is not due to a breach by the tenant, and (ii) the date of termination is not foreseeable by the tenant sufficiently far enough in advance to permit removal before the termination of the lease or unless equitable factors (such as illness of the tenant) justify an extension. Restatement (Second) of Property: Landlord and Tenant § 12.3.

Assigning and Subletting Leases generally

Absent any language to the contrary, a lease can be freely assigned or sublet. Because a lease is both a contract and a conveyance, these can be independent grounds for liability.

Marketable Title generally

Absent contrary language, an implied covenant of marketable title (i.e., a title free from defects) is part of a land sales contract, regardless of the type of deed created. Marketable title is a title that is free from an unreasonable risk of litigation.

Abuse of Process

Abuse of process is the misuse of the power of the court. To recover for abuse of process, the plaintiff must prove: i) A legal procedure set in motion in proper form; ii) That is "perverted" to accomplish an ulterior motive; iii) A willful act perpetrated in the use of process that is not proper in the regular conduct of the proceeding; iv) Causing the plaintiff to sustain damages. For abuse of process, unlike malicious prosecution, the existence of probable cause—and even whether the defendant ultimately prevails on the merits—is not determinative in precluding liability. Rather, the essence of the tort is using the legal process for an ulterior motive, such as extorting payment or recovering property.

Contract Delegatee Duty

Acceptance by the delegatee of a delegation of contract duties constitutes a promise to perform those duties. That promise is enforceable against the delegatee if the delegatee has received consideration or there is a consideration substitute that makes the promise enforceable.

Acceptance of deed

Acceptance is required for a transfer to be complete, and the grantee is generally presumed to have accepted any beneficial conveyance. Acceptance relates back to the time the deed was transferred, unless a bona fide purchaser or creditor of the grantor would be negatively affected by doing so. If the grantee rejects the deed, no title passes and the grantor holds the title.

Accessions

Accessions are goods that are physically united with other goods in such a manner that the identity of the original goods is not lost, such as memory installed in a computer, or tires installed on a car. A security interest that is created in collateral that becomes an accession is not lost due to the collateral becoming an accession. Moreover, a security interest can be created in collateral that is an accession. Generally, the description of the collateral in the security agreement will determine whether a secured party acquires a security interest in the whole in the event its collateral becomes an accession. UCC §§ 9-102; 9-335(a), cmt. 5.

Intentional Tort Prima Facie generally

Act, intent, and causation

Additional Factors in Child Support

Additional factors that the courts consider in determining the amount of support include: (1) Ages of the children; (2) Unusual needs and unusual obligations (e.g., special education); (3) Support obligations of the parties; (4) Assets of the parties; (5) Medical expenses outside of insurance coverage; (6) Standard of living; (7) Duration of marriage, for spousal support or alimony pendente lite; and (8) Best interests of the child.

Ceremonial marriage - waiting period

Additionally, most U.S. jurisdictions impose a waiting period between the date of the marriage and the date of the marriage ceremony. The waiting period may typically be waived by the court in cases of an emergency.

Termination of Child Support by Emancipation

Additionally, support may be terminated if a child is emancipated before the age of majority. To be emancipated, a minor child must be established as a self-supporting individual beyond the sphere of influence of his parents or independent of parental control. The mere employment of the child does not, by itself, establish emancipation. Also, the birth of a child by an unemancipated child does not result in an automatic emancipation and termination of support. However, the support rights of an employable child are contingent on the compliance by the child with reasonable parental demands; an employable child who fails to comply risks loss of parental support.

Adoption generally

Adoption is a statutory legal action in which the previous parent-child relationship is terminated and a new parent-child relationship is established. Once the adoption has been completed, a new birth certificate with the adoptive parents' names is issued for the child. The records for most adoptions are sealed and kept confidential, but many states allow the adopted child to receive medical information on the birth parents. Additionally, most states have residency requirements for the county in which the adoption will take place and prohibit the payment of money to the natural parents other than costs related to medical care connected with the pregnancy.

Divorce - Adultery

Adultery is voluntary sexual intercourse with someone other than one's spouse. Because the details of adultery are rarely known to both parties, it is usually proven by circumstantial evidence. It must be shown that a party had the opportunity and the inclination to commit adultery. The facts of the case must provide enough evidence to conclude that the person was guilty of the adulterous act.

Life Estate - Affirmative Waste

Affirmative (or voluntary) waste is the result of overt conduct that causes a decrease in the value of the property. The holder of the vested remainder interest may bring suit for damages, and either a vested or contingent remainder holder may bring suit for an injunction. Limited exceptions exist for the exploitation of minerals and timber if such use was authorized by the grantor, was in effect at the time the tenancy began, or is necessary to maintain the property.

Nondisclosure of Contract Fact

Affirmative conduct to conceal a fact is equivalent to an assertion that the fact does not exist. In addition, mere nondisclosure of a known fact is tantamount to an assertion that the fact does not exist, if the party not disclosing the fact knows that: (1) Disclosure is necessary to prevent a previous assertion from being fraudulent or a misrepresentation; (2) Disclosure would correct a mistake of the other party as to a basic assumption, and the failure to disclose would constitute lack of good faith and fair dealing; (3) Disclosure would correct a mistake of the other party as to the contents or effect of a writing evidencing their agreement; or (4) The other party is entitled to know the fact because of a confidential or fiduciary relationship.

Affirmative Covenants

Affirmative covenants run with the land if they require the owner to do something related to use and enjoyment of the land (e.g., a covenant to maintain a fence). Traditionally, a covenant to pay money was held not to touch and concern because it did not physically affect the land, but today such a covenant, which typically involves the payment of fees to a common-interest ownership community (e.g., a homeowners' or condominium association) is generally enforceable.

Court approval of adoption

After a thorough investigation regarding the fitness of the adoptive parents, the courts either approve or deny the adoption. The investigation may be waived if the adoptive parents are close family members of the child.

Deficiency and Surplus with Foreclosure of real property

After bringing a foreclosure action, the mortgagee is permitted by many states to bring a deficiency action against the mortgagor and any party who has assumed the mortgage if the foreclosure sale proceeds are insufficient to satisfy the mortgage obligation. Some states disallow this action when the mortgagee forecloses via a privately supervised foreclosure sale or when the mortgage is a purchase-money mortgage. In addition, some states limit the amount that may be recovered in a deficiency action to the fair market value of the property when the value of the property falls below the amount of the deficiency. In all states, if the mortgagee has granted the mortgagor a nonrecourse loan, then the mortgagor does not have personal liability for the loan and thus is not liable for any deficiency.

Additional examination of witness

After cross-examination, the party who called the witness may engage in redirect examination, ordinarily to reply to any significant new matter raised on cross-examination. Recross-examination is also generally permissible with respect to significant new matters brought up during redirect examination. For both redirect and recross, the court has discretion to permit inquiry into other matters.

Mortgage equity of redemption

After default on the obligation, but prior to a foreclosure sale, the mortgagor may regain clear title to the property under the doctrine of equity of redemption by paying the full amount of the outstanding debt (as increased by an acceleration clause) plus any accrued interest. Many states recognize a statutory right of redemption that permits the mortgagor to reclaim the property after a foreclosure sale.

Taking Possession Following Default

After default, a secured party is entitled to take possession of the collateral. Unless the security agreement provides otherwise, a secured party is not required to give notice of default, nor is he required to give notice of his intent to take possession of the collateral. UCC § 9-609.

Disposition of Collateral

After default, a secured party may sell, lease, license, or otherwise dispose of all or any of the collateral. Within limits, the secured party may keep the collateral (strict foreclosure) in full or partial satisfaction of the obligation. UCC §§ 9-610(a), 9-620.

Default on Accession

After default, a secured party with a security interest in an accession that has priority over the claims of anyone having an interest in the whole may remove the accession from the other goods. UCC § 9-335.

Other examinations under Rule 35

After delivery of the examiner's report, a party who was examined must provide the party who moved for the examination, on request, a report of all other previous or subsequent examinations of the same condition in that party's custody or control. Rule 35(b)(3). If the party who was examined obtains the report of the examination or conducts a deposition of the examiner, then the party waives any privilege it may have regarding the testimony of any other person who has examined or thereafter examines the party with respect to the same condition. Rule 35(b)(4).

Polling the jury

After the jury returns a verdict and before the jury is dismissed, the court must poll the jurors individually if a party requests; the court may also do so on its initiative. If there is a lack of unanimity or assent by the number of jurors to which the parties stipulated, the court may order the jury to continued deliberations or may order a new trial. Rule 48(c).

Motion for Judgment on the Pleadings

After the pleadings are closed, a party may move for judgment on the pleadings pursuant to Rule 12(c). A motion for judgment on the pleadings allows a court to dispose of a case when the material facts are not in dispute and a judgment on the merits can be achieved based on the content of the pleadings. Motions under Rule 12(c) are not often utilized because of the availability of motions under Rule 12(b)(6) and motions for summary judgment under Rule 56.

Agent's Duty of Loyalty and Obedience

Agency is a special relationship that gives rise to fiduciary duties on the part of the agent. A principal has the right to expect good faith, loyalty and obedience from her agent. A principal is entitled to expect the agent to avoid acts in the agent's self-interest in matters connected with the agency and to refrain from secretly profiting from transactions on behalf of the principal. The fiduciary duty owed by the agent to the principal implies that the agent will not breach the trust imposed by the agency relationship. Liable under contract and tort.

Agent's Duty of Loyalty

Agency is a special relationship that gives rise to fiduciary duties on the part of the agent. As a fiduciary, the agent owes the principal a duty of loyalty, which generally requires the agent to act solely for the benefit of the principal (and not for the benefit of the agent or third parties) in matters connected with the agency. This duty applies to all agents, whether they are gratuitous or compensated and can vary depending on the parties' agreement. The agent's general duty of loyalty requires the agent to do, or not do, many specific things, which are discussed below.

Implied Authority by Emergency

Agents have implied authority to take all reasonably necessary measures in cases of emergency, in the absence of the principal and/or specific instructions to act.

Tax Consequences of Alimony

Alimony is considered taxable income to the recipient and is deductible by the payor. A parent cannot, however, deduct child-support payments as alimony or include them as income. The custodial parent automatically gets the child dependency exemption, unless the parties agree otherwise. Often the parties agree to alternate the exemption. The parent who pays medical expenses may deduct those expenses.

Ceremonial marriage - Age

All U.S. jurisdictions impose minimum age restrictions on individuals who wish to marry. Almost all U.S. jurisdictions require an individual, in the absence of parental consent, to be at least 18 years old. All U.S. jurisdictions permit individuals less than 18 years old to marry, generally requiring parental consent to, and/or judicial approval of the marriage. Statutory age requirements for marriage have withstood constitutional scrutiny. See, e.g., Moe v. Dinkins, 669 F.2d 67 (2d Cir. 1982) (the rational-basis test applies to the minimum age requirement to marry, and the state's important interest in promoting the welfare of children by preventing unstable marriages among those who lack capacity is a legitimate state interest).

Commercial Reasonability for Disposition of Collateral

All aspects of the disposition of collateral (method, manner, time, and place) must be conducted in a commercially reasonable manner. A disposition is commercially reasonable when conducted: i) In the usual manner on a recognized market, such as a stock exchange, that has standardized price quotations for fungible goods; ii) At the price current in any recognized market at the time of the disposition; or iii) Otherwise in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.

Junior Interests and Foreclosure Sales

All interests that are junior to the mortgage that is being foreclosed are generally destroyed. If the foreclosure is a judicial foreclosure, the holder of a junior interest must be given notice of the foreclosure and made a party to the foreclosure action. This provides the junior interest with an opportunity to redeem the property by paying off a senior interest. If the holder of a junior interest is not made party to the action, her interest is not affected by the foreclosure action. If the foreclosure is a "power of sale" foreclosure, most states that recognize this form of foreclosure do not require the foreclosing mortgagee to give notice to the holder of a junior interest, even though the sale will result in the destruction of the junior interest. However, the holder of a junior interest (as well as the mortgagor) can challenge a "power of sale" foreclosure that does not comply with the statutory procedures for such sales. A failure to adhere to these procedures may result in the voiding of the sale, even if the challenger does not establish harm that results from the failure.

Wild Deeds

Although an instrument is recorded and indexed in the recording office, it may not be recorded in such a way as to give notice to subsequent purchasers (i.e., the deed may not be in the "chain of title"). A recorded deed that is not within the chain of title is a "wild deed."

Amount of Child Support generally

All jurisdictions have adopted child-support guidelines to streamline the process by using objective bases for determining child-support awards. Child-support awards are typically based on income from any source and include wages, interest and dividends, rental income, and other income received, including retirement benefits, capital gains, and Social Security income. The guidelines are applied in all cases regardless of marital status.

Tract Index

All properties in a tract index system are listed by location on a separate page that includes all conveyances and encumbrances.

Judicially Supervised Sale of Foreclosed Real Property

All states permit a mortgagee to foreclose on a mortgage through a judicially supervised public sale of the mortgaged property. In about half of the states, this is the primary method of foreclosure and in some states, it is the only method permitted.

General Denial in Answer

Alternatively, a party can make a general denial, stating that he denies every allegation of the complaint. This may only be done, however, if the party, in good faith, intends to controvert all of the allegations. A party could also make a qualified general denial, stating that he denies every allegation in the complaint, except certain specified allegations.

Buyer's Remedy under UCC - Cover

Alternatively, the buyer may purchase similar goods elsewhere and recover the replacement price minus the contract price. UCC § 2-712.

Real Property and Article 9

Although Article 9 is generally limited to personal-property transactions, it does apply to a security interest in a secured obligation (e.g., a promissory note), even though the obligation is itself secured by a transaction or interest to which Article 9 does not apply (e.g., a real property mortgage). UCC § 9-109(b).

Modification of Premarital Agreements

Although a court may uphold a provision in a marital agreement that prevents modification of property rights, including spousal support, a court may always modify child-support provisions in a marital agreement even if the agreement states that no modifications may be made.

Acceleration Clause of Mortgage

Although a mortgagee may bring a foreclosure action whenever a mortgage obligation is in default, the mortgagee is entitled to collect only the amount of the obligation that is currently due and owing, unless the mortgage contains an acceleration clause. An acceleration clause provides that the full amount of the mortgage obligation becomes due upon default.

Debtor's Permission and Breach of Peace

Although a secured party generally can seize collateral without breaching the peace after obtaining the debtor's permission to take the collateral, a seizure based on permission gained under color of law (e.g., participation of a police officer without judicial authorization) or through the use of, or the threat to use, force may be a breach of the peace. If the debtor physically objects to the seizure of collateral, then that seizure constitutes a breach of the peace; courts are divided over whether mere verbal objections constitute a breach of the peace.

Duty of Tenant to Pay Rent

Although a tenant may enjoy a leasehold estate without having to pay rent (e.g., a tenancy at will), most tenants are required to pay rent. Although rent was not apportionable under common law, most states today allow the tenant to pay a proportionate amount of the rent if the leasehold terminates prematurely. In addition, the landlord may require a deposit (either as security or a future rent payment) prior to commencing the leasehold. This duty to pay rent is subject to two major exceptions: destruction of the premises and a material breach by the landlord.

Rescission of a Land Sales Contract

Although a writing is generally required to create an enforceable land sales contract, most states permit the oral rescission of a land sales contract.

Agent's Contractual Duties

Although an agency relationship does not require a contract between the agent and the principal, an agent has an implied duty to act in accordance with the terms of any contract between the parties.

Option Contracts and Right of Refusal and Restraints Against Alienability

Although direct restraints on the alienability of property are invalid, both an option contract and a right of first refusal are only partial restraints. In determining whether to enforce each, the rule of reasonableness applies. Under this rule, the utility of the purpose served by the restraint is balanced against the likely harm that would result from its enforcement. In most cases, each is enforceable. Restatement (Third) of Property: Servitudes §3.4, cmt. c.

Breach of Warranty

Although generally consequential damages for breach of warranty may be limited or excluded unless the limitation or exclusion is unconscionable, limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable. Limitation of damages when the loss is commercial is not. UCC § 2-719(3). The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount. UCC § 2-714(2). Repair costs often are used to determine this difference in value, but when repairs fail to restore the goods to their value as warranted, a further adjustment is required.

Appeal of Interlocutory Orders

Although most interlocutory orders, such as the denial of a summary judgment motion, a motion to dismiss, or the granting of a new trial motion, are not immediately appealable, 28 U.S.C. § 1292(a) makes certain equitable orders reviewable immediately as a matter of right, including: i) An order granting, modifying, refusing, or dissolving an injunction; ii) An order appointing or refusing to appoint a receiver; and iii) A decree determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. In addition, under 28 U.S.C. § 1292(b), if a district court certifies that an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, then a court of appeals has discretion to permit an appeal to be taken from such order if application is made to it within 10 days after the entry of the order.

Habeas Corpus and Child Custody

Although not available for child-custody disputes or visitation rights, a habeas corpus proceeding is a way in which a person who claims to have custody of a child, but who does not have physical custody of the child, can be heard by the court. In addition, during these proceedings, many jurisdictions will revisit the issue of which placement is in the best interests of the child. Less limiting than habeas corpus is a suit in equity action, which enjoins conduct in violation of a custody order. The current trend has been to use suits in equity over habeas corpus proceedings.

Occupancy Restrictions under FHA

Although the FHA prohibits discrimination on the basis of familial status, it does exempt reasonable zoning restrictions based on maximum occupancy. However, a zoning restriction that permitted an unrestricted number of family members to live together while restricting the number of unrelated persons who could live together did not qualify for this exemption. City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995).

Supplemental Jurisdiction and Permissive Joinder

Although the additional claim is not required to satisfy the amount-in-controversy requirement for purposes of supplemental jurisdiction, when the additional claim is asserted by a plaintiff seeking to join the action under Rule 20 (permissive joinder), the addition of that party cannot result in a violation of the requirement for complete diversity of citizenship.

In Personam Jurisdiction and Contracts

Although the fact that one party to a contract is a resident of the forum state will not, by itself, confer personal jurisdiction over the nonresident party to the contract, the existence of the contract can be a significant factor in determining that minimum contacts exist, such that the exercise of personal jurisdiction over the nonresident is appropriate. Burger King v. Rudzewicz, 471 U.S. 462 (1985).

Tenant Abandonment and Anticipatory Repudiation

Although the landlord can sue a tenant for rent as it becomes due, a landlord cannot sue for future rent due under the lease because the doctrine of anticipatory repudiation does not apply to leases.

Grandparent visitation

Although the majority of jurisdictions have statutes regarding grandparent visitation, they differ among states and often do not guarantee the right to visit. In Troxel, the Supreme Court specifically implicated a fit parent's fundamental right to the care, custody, and control of the children in relation to grandparent visitation. Courts examining the request of grandparents for visitation will focus on the decision of the fit parents, statutory factors, and what is in the best interests of the child.

Person Entitled to File a Financing Statement

Although the secured party or a representative of the secured party usually files the financing statement, any person may do so. The signature of the filing party is not required. UCC § 9-509(a).

Life Estate - Ameliorative Waste

Ameliorative waste occurs when a change in use of the property increases the value of the property. At common law, a life tenant was prohibited from engaging in acts that changed the property's value (even those that enhanced the value), unless all future interest holders were known and consented. The current majority rule allows life tenants to physically alter structures on the property when a substantial and permanent change in neighborhood surroundings makes it necessary to continue reasonable use of the property, so long as the property value is not diminished. When determining whether ameliorative waste is non-compensable, courts consider the tenant's expected remaining life, the need for the change, and the good faith of the parties.

Absolute Deed

An absolute deed (also known as a "deed of absolute sale") is free of all liens and encumbrances and is used to transfer unrestricted title to property. When there is an obligation created prior to or contemporaneously with this transfer, the grantor may prove that the transfer was not actually a sale but instead a disguised mortgage. If the issue is proven, a court will treat the transfer as an equitable mortgage.

Prohibited restraints on real property

An absolute restraint on alienation of a fee simple is void. In addition, any restraint based on a person's race, ethnicity, or religion is not enforceable. Further, such discriminatory restraints are considered state actions and are forbidden by the Fourteenth Amendment. Moreover, the federal Fair Housing Act prohibits housing discrimination on the basis of race, color, religion, gender, disability, familial status, and national origin. Among the prohibited activities are refusing to rent or sell housing or setting different terms or conditions for the sale or rental of a dwelling on a prohibited basis. There are various exceptions, including an exemption for a residential sale by an owner and a lease of an owner-occupied dwelling with four or fewer units.

Contract Acceptance Generally

An acceptance is an objective manifestation by the offeree to be bound by the terms of the offer. The offeree must communicate the acceptance to the offeror. Only a party to whom an offer is extended may accept or, if the offer is extended to a class, a party who is a member of the class may accept. An offeree must know of the offer upon acceptance for it to be valid. In addition, the offeree must communicate the acceptance to the offeror.

Mailbox Rule

An acceptance that is mailed within the allotted response time is effective when sent (not upon receipt), unless the offer provides otherwise. The mailing must be properly addressed and include correct postage.

Venue in Case Against Federal Official

An action against an officer or employee of the United States or its agencies acting in an official capacity or under color of legal authority may be commenced in a judicial district in which: i) A defendant in the action resides; ii) A substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated; or iii) The plaintiff resides, if no real property is involved in the action. § 1391(e). A suit against a private individual for money damages does not fall within this venue provision merely because the individual is an employee of the federal government; the provision applies only to suits that are essentially against the federal government. Stafford v. Briggs, 444 U.S. 527 (1980).

Strict Product Liability - Failure to Warn

An action brought under a failure-to-warn theory is essentially the same as a design-defect claim, but the defect in question is the manufacturer's failure to provide an adequate warning related to the risks of using the product. A failure?to?warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which risks could have been reduced or avoided by providing reasonable instructions or warnings. The failure to include the instructions or warnings renders the product not reasonably safe.

Trespass to Chattel - Appropriate Plaintiffs

An action for trespass to chattels may be brought by anyone with possession or the immediate right to possession of the chattel.

Battle of the Forms - Additional Terms

An additional term in the acceptance is automatically included in the contract when both parties are merchants, unless: (1) The term materially alters the original contract; (2) The offer expressly limits acceptance to the terms of the offer; or (3) The offeror has already objected to the additional terms, or objects within a reasonable time after notice of them was received. If any one of these three exceptions is met, the term will not become part of the contract, and the offeror's original terms control. UCC § 2-207(2).

Adverse Possession - Tacking

An adverse possessor may tack on his predecessor's time in order to satisfy the statutory period, as long as there is privity between successive possessors. Privity is satisfied if the possessor takes by any non-hostile means (such as descent, devise, contract or deed). The periods of possession must pass directly from one possessor to the next without any gaps. Tacking is not allowed when there is an actual, wrongful exclusion of a party entitled to possession from the property (ouster).

Exception to After-Acquired Collateral

An after-acquired clause is not effective if the collateral is consumer goods, unless the debtor acquires them within 10 days after the secured party gives value, or a commercial tort claim. UCC § 9-204(b).

Agency relationship creation

An agency relationship is created when: (1) A principal manifests assent to an agent; (2) The agent acts on the principal's behalf; (3) The agent's actions are subject to the principal's control; and (4) The agent manifests assent or otherwise consents.

Agent's Duty to Provide Information

An agent has a duty to provide relevant information to the principal pertaining to the subject matter of the agency and that the agent knows (or should know) the principal would wish to have.

Agent's Duty to Not Compete

An agent has a duty to refrain from competing with the principal concerning the subject matter of the agency and from assisting the principal's competitors.

Agent's Duty of Confidentiality

An agent has a duty to refrain from using the principal's confidential information for the benefit of anyone other than the principal, including the agent. This duty survives termination of the agency relationship.

Agent's Right to Be Compensated

An agent has a right to receive compensation for her services if the principal expressly or impliedly promises to compensate the agent. When no amount has been specified in the agency relationship, an agent has the right to be compensated in the customary manner of the business trade. However, a principal does not have a duty to pay compensation to subagents engaged by an agent, unless the principal agrees to do so.

Agent's Duty to Keep and Render Accounts

An agent has the duty to keep the principal's property separate from the agent's property. Also, an agent has a duty to keep and render an accounting of the principal's money and other property.

Contractual Liability of the Principal

An agent has the power to bind the principal to a contract when: (1) The agent has actual authority (express or implied); (2) The agent has apparent authority; or (3) The principal is estopped from denying the agent's authority.

Agent's Right to Indemnification

An agent has the right to indemnification for losses incurred when the agent transacted lawful business with actual authority.

Power to appoint subagent

An agent may appoint a subagent only if the agent has actual or apparent authority to do so.

Equal-dignities Rule

An agent may execute a deed on behalf of a principal-grantor. While the creation of an agency relationship does not generally require a writing, under the equal-dignities rule, when the act performed by an agent on behalf of the principal is required to be in writing by law, the agent's authority must also be in writing. Restatement (Third) of Agency § 3.02. Consequently, when an agent signs a deed (or a real property instrument that is subject to the Statute of Frauds, such as a contract for the sale of real property), the agent's authority must also be in writing.

Agent's Remedies

An agent might have a claim against the principal founded in contract or tort law. However, the agent is required to choose the remedy sought and to mitigate his damages prior to and during the period that the agent seeks relief. To sue for breach of contract, the agent must establish that a right to compensation exists. This normally means that the agent must be a compensated agent, i.e., there must have been consideration to support the agency relationship. The agent may file a claim for compensation owed to him under the terms of the contract with the principal. Such a claim could take the form of a suit in damages to recover compensation or a lien against the principal.

Agent's Warranty of Authority

An agent or actor purporting to be an agent for a principal gives an implied warranty of authority to a third person with whom the agent enters into a contract on the principal's behalf. If the agent or actor lacks the power to bind the principal, then a breach of the implied warranty has occurred, and the agent is liable to the third party for breach. An agent is treated as giving an implied warranty of authority when the principal is disclosed or partially disclosed, but not when the principal is undisclosed. An agent may give an express warranty of authority to induce a third party to deal with the agent.

Agent's Duty to Disclose Principals

An agent who acts for more than one principal in a transaction between or among them owes duties of disclosure, good faith, and fair dealing to each.

Subagents and torts

An agent who appoints a subagent may be vicariously liable for torts committed by the subagent.

Agreement Not To Partition Concurrent Estate

An agreement by co-tenants not to seek partition is enforceable. However, the agreement must be clear, and the time limitation must be reasonable.

Effect of failure to deny in Answer

An allegation, other than one relating to the amount of damages, will be deemed admitted if a responsive pleading is required and the allegation is not denied.

Rights of Contract Assignee

An assignee takes all of the rights of the assignor as the contract stands at the time of the assignment, but she takes subject to any defenses that could be raised against the assignor. The rights of the assignee are subject to setoff if the transaction giving rise to the setoff occurred prior to the time the obligor was given notice of the assignment. In addition, the rights of the assignee are subject to a setoff that arises out of the same transaction. The assignee is also subject to any modification of the contract made prior to the time the obligor obtained notice of the assignment. Thus, payment by the obligor to the assignor can be raised as a defense, provided the payment was made before the obligor had notice of the assignment.

Limitations on Assignment of Contract

An assignment is not allowed, however, if it materially increases the duty or risk of the obligor or materially reduces the obligor's chance of obtaining performance. In addition, a contract provision can render an otherwise allowable assignment void (e.g., "any assignment of rights under this contract is void") and unenforceable by the assignee against the obligor. By contrast, a contract provision that merely prohibits an assignment (e.g., "An assignment of rights under this contract is prohibited"), while giving rise to an action for breach against the assignor, does not operate to prevent the assignor from assigning those rights (the assignor retains the power to make an assignment) nor the assignee from suing the obligor.

Waiver of Assignment or Sublease by Landlord

An assignment or sublease may be waived if the landlord knows of either the assignment or sublease and does not object. When a landlord consents to an assignment or waives her right to object, she cannot then object to a subsequent assignment. This prohibition on an objection to a subsequent assignment does not apply to subsequent subleases, and a minority of jurisdictions do not impose such a prohibition even on a subsequent assignment.

Transfer of Easement Appurtenant

An easement appurtenant is transferred with the land to which it relates. Consequently, the benefit is transferred automatically with the transfer of the dominant estate, and the burden likewise is transferred automatically with the transfer of the servient estate.

Easement by Necessity

An easement by necessity is generally created only when property is virtually useless (e.g., landlocked) without the benefit of an easement across neighboring property. In addition, for an easement by necessity to be created, both the dominant and servient estates must have been under common ownership in the past. Also, the necessity must have arisen at the time that the property was severed and the two estates were created. However, unlike with an easement by implication, a quasi-easement need not have existed at the time that both estates were under common ownership (i.e., there need not be a showing of prior use). Restatement (Third) of Property: Servitudes § 2.15.

Termination of Easement by the end of necessity, destruction, and condemnation

An easement by necessity terminates when the necessity ceases to exist. In addition, destruction of a structure on the servient estate by natural forces can terminate an easement if the easement is related to the structure (e.g., access to a lighthouse). Condemnation of the servient estate also terminates an easement. Note that some courts permit the holder of the easement to receive compensation because of the condemnation.

Express easement by reservation

An easement by reservation is created when a grantor conveys land but reserves an easement right in that land for his own use and benefit (and not for a third party).

Termination of Easement by Abandonment

An easement can be terminated if the owner of the easement acts in an affirmative way that shows a clear intent to relinquish the easement right. Mere statements of intent without affirmative conduct are insufficient to constitute abandonment but may constitute estoppel. Mere nonuse of the easement is also not sufficient to extinguish the easement right.

Termination of Easement by Release

An easement can terminate by a writing that expressly releases the easement right and complies with the Statute of Frauds.

Easements in gross

An easement is in gross if it was granted to benefit a particular person (as opposed to the land).

Termination of Easement by Merger

An easement is terminated if the owner of the easement acquires fee title to the underlying estate (and the easement is said to "merge" into the title). Under such circumstances, the easement is not automatically revived unless a new grant is made. Note that the easement does not merge if the owner acquires less than fee title, and merger is applicable only to easements appurtenant.

Easements generally

An easement is the right held by one person to make specific, limited use of land owned by another. The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate.

Within the scope of employment

An employee acts within the scope of employment when either: (1) Performing work assigned by the employer; or (2) Engaging in a course of conduct subject to the employer's control. When an employee acts independently of any intent to serve any purpose of the employer, the employer may escape liability.

Respondeat Superior - Scope of Employment

An employer is liable for the tortious conduct of an employee that is within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. Careful instructions directed to the employee do not insulate the employer from liability—even when the employee acts counter to the instructions—if the employee is acting within the scope of employment.

Respondeat Superior - Detour and Frolic

An employer may be liable for a tort committed by the employee during an employee's detour (a minor and permissible deviation from the scope of employment) but not for an employee's frolic (an unauthorized and substantial deviation). The employer and employee will be jointly and severally liable (see §IV.J.1. Joint and Several Liability, infra) for torts committed by the employee within the scope of employment.

Setting aside default

An entry of default may be set aside for good cause. Rule 55(c). Courts have interpreted this standard broadly. The three factors the courts generally consider are: (i) whether the defendant's failure to act was willful, (ii) whether setting the default aside would prejudice the plaintiff, and (iii) whether the defendant has presented a meritorious claim. See Lacy v. Sitel Corp., 227 F.3d 290, 292 (5th Cir. 2000), Berthelsen v. Kane, 907 F.2d 617, 620 (6th Cir. 1990). If a final default judgment has been entered, the general rule for relief from a judgment governs.

Error in the secured party's name in a financing statement

An error in the name of the secured party on a financing statement is usually not seriously misleading and does not affect the perfection of the security interest because the filing system is not geared to a search based on the secured party's name. However, the secured party who files a financing statement with such an error may be subject to estoppel in favor of a holder of a conflicting claim in the collateral. UCC § 9-506, cmt. 2.

Executory Interests in Real Property

An executory interest is a future interest in a third party that is not a remainder and that generally cuts the prior estate short upon the occurrence of a specified condition. In addition, a future interest that follows a fee simple determinable and is held by a third party (rather than the grantor) is an executory interest, even though it arises naturally out of the termination of the fee simple determinable, because a remainder never follows a defeasible fee and an executory interest is the only other future interest held by a third party. There are two types of executory interests: shifting executory interests and springing executory interests.

Rule Against Perpetuities - defeasible fee followed by an executory interest

An executory interest that follows a defeasible fee violates the Rule, unless there is a time limit on the vesting of the executory interest that satisfies the Rule. If the limit on the defeasible fee is durational (e.g., "so long as," "while"), then the striking of the executory interest leaves the grantor with the possibility of reverter. If the limit on the defeasible fee is a condition subsequent (e.g., "but if," "upon the condition that"), then the striking of the executory interest leaves the holder of the defeasible fee with a fee simple absolute interest in the property.

Express easement by grant

An express easement by grant arises when it is affirmatively created by the parties in a writing that is in compliance with the Statute of Frauds.

Incidental Beneficiary

An incidental beneficiary is one who benefits from a contract even though there is no contractual intent to benefit that person. An incidental beneficiary has no rights to enforce the contract. Restatement (Second) of Contracts § 302(2).

Independent Contractor Agent

An independent contractor can be identified as a person who: (1) Bears the risk and benefits from good management; (2) Maintains a high level of independence; (3) Is free to work for others; (4) Agrees to be paid a fixed fee; (5) Receives payment based on results; (6) Is liable for work performed; and (7) Accepts responsibility to remedy defects at her own expense.

Negligence - Proximate Cause and Superseding Cause

An indirect cause results from an act or event occurring after the defendant's tortious act and before the plaintiff's injury (i.e., an intervening event). A superseding cause is any intervening event that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm. Whether an intervening cause will be superseding depends upon its foreseeability. The fact that an intervening cause occurred at all is considered to be foreseeable. A defendant is liable if the type of harm is foreseeable, even if it occurred in an unforeseeable manner.

Installment Land Contract

An installment land contract (i.e., a contract for deed) is a contract whereby the seller retains title until the buyer makes the final payment under an installment payment plan. Traditionally, an installment land contract allowed the seller to keep all installment payments and retake possession if the buyer failed to make a single payment, even if the buyer had made almost all of the installment payments. States vary in their methods to assist a buyer in default. Some states treat an installment land contract as a mortgage, requiring the seller to foreclose on the property to gain clear title. Other states offer the buyer the equitable right of redemption. Still others allow the seller to retain ownership of the property but require some form of restitution to the buyer.

Negligence - Invitees

An invitee is either: (1) A public invitee—someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or (2) A business visitor—someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor. A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. However, the duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.

Objection to Improper Venue

An objection to improper venue, unlike an objection regarding subject matter jurisdiction, may be waived by the parties, and it is automatically waived if not asserted in a timely manner, i.e., raised in a pre-answer motion to dismiss under Rule 12(b)(3) or in the first responsive pleading, if a motion under Rule 12(b)(3) is not filed. Rule 12(h)(1); § 1406(b).

Objection to subject matter jurisdiction

An objection to subject matter jurisdiction can be presented by any party at any stage of a proceeding, including on appeal, or may be raised by the court. If, however, the issue of subject matter jurisdiction was not contested, then a judgment ordinarily may not be challenged collaterally on that basis.

Obligor

An obligor is a person who must pay (or otherwise perform) with respect to the obligation that is secured by a security interest in the collateral. UCC § 9-102(a)(59).

Contract Offer

An offer is an objective manifestation of a willingness by the offeror to enter into an agreement that creates the power of acceptance in the offeree. In other words, it is a communication that gives power to the recipient to conclude a contract by acceptance.

Rejection of Contract Offer

An offer is terminated by rejection. In other words, the offeree clearly conveys to the offeror that the offeree no longer intends to accept the offer. A rejection is usually effective upon receipt. An offeree cannot accept an offer once it has been terminated. A counteroffer acts as a rejection of the original offer and creates a new offer. An exception exists for an option holder, who has the right to make counteroffers during the option period without terminating the original offer.

Termination of Contract Offer by Death or Incapacity

An offer terminates upon the death or mental incapacity of the offeror. An exception exists for an offer that is an option, which does not terminate upon death or mental incapacity because consideration was paid to keep the offer open during the option period, and the offer is therefore made irrevocable during that period.

Notice of Acceptance of Bilateral Contract

An offeree of a bilateral contract must give notice of acceptance. Under the mailbox rule, because acceptance becomes valid when sent, a properly addressed letter sent by the offeree operates as an acceptance when mailed, even though the offeror has not yet received the notice. Under the UCC, notice is required within a reasonable time if acceptance is made by beginning performance and failure to do so will result in a lapse of the offer. UCC § 2-206(2).

Exceptions to the Equal-dignities rule

An officer of an entity such as a corporation who has the authority to act on behalf of the entity by virtue of the officer's status may sign a deed without specific authorization of the corporation to do. In addition, a person whose only act is signing a specific deed at the grantor's request (i.e., an amanuensis) may do so without written authorization. Restatement (Third) of Agency § 3.02, cmt. c.

Option Contract for Property - Revocation and Termination

An option contract removes the ability of a grantor to revoke the option. Otherwise, an offeror is free to withdraw the offer, even despite a promise to the contrary, unless the offeree has detrimentally relied on the offer. In addition, as a contract, the option does not terminate upon the death or incapacity of the grantor of the option, unlike the termination of an offer upon the death of the offeror.

Contract Option

An option is an independent promise to keep an offer open for a specified period of time. Such a promise limits the offeror's power to revoke the offer until after the period has expired, while also preserving the offeree's power to accept. If the option is a promise not to revoke an offer to enter a new contract, the offeree must generally give separate consideration for the option to be enforceable. If the option is within an existing contract, no separate consideration is required. Irrevocability cannot exceed 90 days, regardless of whether a time period is stated or implied, unless the offeree gives consideration to validate it beyond the 90-day period.

Unenforceable Contracts

An unenforceable contract is a valid contract that cannot be enforced if one of the parties refuses to carry out its terms.

Unincorporated associations in agency relationships

An unincorporated association is a non-legal entity in which two or more persons voluntarily associate with mutual consent or purpose. Examples of unincorporated associations include religious, literary, professional, charitable, or social associations; they each lack the capacity to form agency relationships.

Individual Agent

Any individual with minimal capacity (some understanding that a contract is being initiated and the general nature of its subject matter) has the requisite capacity to be an agent. Status as an agent is established by the agreement to act on behalf of, and subject to the control of, the principal.

Partnerships and Unincorporated Associations in Diversity Jurisdiction

An unincorporated association, such as a partnership, is considered a citizen of each state in which each of its members is domiciled. Thus, it is possible that a partnership could be a citizen of all 50 states, if it had partners domiciled in every state. This rule holds for both general and limited partnerships; a limited partnership will therefore be a citizen of every state in which its general and limited partners are domiciled. Carden v. Arkoma Assocs., 494 U.S. 185 (1990). An unincorporated association may be treated as a class when "it appears that the representative parties will fairly and adequately protect the interests of the association and its members." In that case, the citizenship of the representative parties controls for purposes of diversity jurisdiction. This exception may not be used merely to create diversity jurisdiction, nor may it be used if the association has the capacity under state law to sue or be sued as an entity. Rule 23.2.

Unwed biological father visitation

An unwed biological father has a substantive due process right under the U.S. Constitution to have contact with his child. However, this right exists only when the father demonstrates a commitment to the responsibilities of parenthood (e.g., participation in child-rearing or providing financial support). Lehr v. Robertson, 463 U.S. 248 (1983). In addition, many states have imposed a two-year limit on the establishment of paternity by an unwed biological father. Further, if the mother is married to another man and refuses to join in a paternity petition, then a state may preclude the purported biological father from pursuing the paternity petition. Michael H. v. Gerald D., 491 U.S. 110 (1989).

Termination of Easement by Severance

Any attempt to convey an appurtenant easement separate from the land it benefits terminates (or "severs") the easement.

Entrepreneur principal

Any business owner who has the legal capacity to contract with a person to represent him and conduct business on his behalf can be a principal.

Removal Jurisdiction

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for the district in which the state court action was commenced. § 1441(a). The right of removal is a right of the defendant only and is not available to a plaintiff defending a counterclaim that could have originally been brought in federal court. Note that removal jurisdiction is not a substitute for either federal question or diversity jurisdiction, but it is simply a mechanism by which defendants in a state action over which a federal court otherwise has subject matter jurisdiction can get the action into federal court.

Objections by class memembers

Any class member may object to the proposal if it requires court approval. An objection may be withdrawn only with the court's approval. Rule 23(e)(5). A class member who objects may appeal the court's approval of a settlement. Devlin v. Scardelletti, 536 U.S. 1 (2002).

Effect of Delegation on the other party to the contract

Any delegation of performance under a contract for the sale of goods may be treated by the other party as creating reasonable grounds for insecurity. UCC§2-210(5). The other party may, without prejudice to his rights against the delegator, demand assurances from the delegatee (UCC § 2-609, see §§ VIII.B.2-3. Anticipatory Repudiation under the Common Law and Anticipatory Repudiation under the UCC, infra). However, as long as the delegation was permitted, the other party must accept the conforming performance of a delegatee or be in breach of the contract. If the promise is enforceable by the delegator, such as when the promise is supported by consideration, the other party to the contract is treated as a third-party beneficiary of the delegation and may be able to enforce the delegatee's promise.

Individual principal

Any individual who has contractual capacity and is not a minor has the legal capacity to enter into an agency relationship as a principal and to appoint an agent. Status as a principal is established by the individual's intent to delegate an act and control the way in which the act is performed by another.

Express Warranty

Any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the seller's opinion or commendation of the value of the goods. The use of a sample or model will create a warranty that the goods the buyer is to receive will be like the proffered sample or model. UCC § 2-313. An express warranty can be made subsequent to the contract for sale. Although this would modify the original agreement, under the UCC, no consideration is needed to make a modification enforceable.

Tenancy in Common

Any tenancy with two or more grantees creates a tenancy in common (and is thus considered the "default" or "catch-all" co-tenancy when neither joint tenancy nor tenancy in the entirety exists). In most states, there is a presumption that a conveyance to two or more persons creates a tenancy in common rather than a joint tenancy. Equal right to possess or use the property (unity of possession) is required, and no right of survivorship exists. Each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the interest. Without the right of survivorship, each tenant can unilaterally devise, encumber, or freely transfer his interest to anyone, and the interest of the other tenants in common will not be affected. A tenant in common may also transfer his interest to another by a lease. The other tenants in common are entitled to share possession with the lessee and to receive a share of the rental profits from the lessor-tenant in common.

Private Nuisance - Appropriate Plaintiffs

Anyone with possessory rights in real property may bring a nuisance claim.

Fertile octogenarian

Anyone, regardless of age or physical condition, including an 80-year-old woman (i.e., the fertile octogenarian) is deemed capable of having children for the purposes of the Rule. Some states have set an age limit (e.g., 55 years old) beyond which it is rebuttably presumed that a woman cannot have a child.

Private Nuisance - Defenses

Apart from challenging the elements of nuisance, the defenses available to a defendant turn on whether the defendant's conduct is intentional, negligent, or abnormally dangerous. For example, the plaintiff's negligence or assumption of the risk may be a defense to a nuisance (or reduce recovery in a comparative-fault jurisdiction) resulting from the defendant's negligence.

Doctrine of Ostensible Agency

Apparent authority derives from the reasonable reliance of a third party on that party's perception of the level of authority granted to the agent by the principal. The perception is based on the principal's behavior over a period of time. No reliance required.

Zoning Area Variances

Area variances focus on restrictions on the manner in which the property is developed (e.g., a structure may not be built within 20 feet of the boundary of the property or may be no more than two stories high) rather than the use to which the property is put. Such a variance, which often arises due to the odd shape of the property, is generally more likely to be granted than a use variance.

Right to hold proceeds of collateral

As additional security, the secured party in possession or control of collateral may hold any proceeds, except money or funds, received from the collateral. Any money or funds received must be applied to reduce the secured obligation or remitted to the debtor. UCC § 9-207(c).

Price in Disposition of Collateral

Article 9 does not mandate a specific price that must be obtained by the secured party in disposing of the collateral. The mere fact that a higher price could have been obtained by disposing of the collateral in a different manner or at a different time does not establish that the disposition was not commercially reasonable. A low price may, however, trigger careful scrutiny by the court of the disposition and its reasonableness. UCC § 9-627(a), incl. cmts. 2, 10.

Article 9 Governance

Article 9 governs a transaction that creates, by agreement, a security interest in personal property or a fixture. In addition, a lease, consignment, agricultural lien, and even a purchase of personal property may be subject to Article 9. Also, a real-property transaction can produce an obligation, such as the promissory note secured by a mortgage, that can be the subject of an Article 9 security interest. UCC § 9-109(a)(1).

Agreement not to assert defenses against an assignee

Article 9 specifically recognizes the validity of an agreement between an account debtor and assignor that the account debtor will not assert against an assignee any claim or defense that the account debtor may have against the assignor. UCC § 9-403.

Federal Question Jurisdiction

Article III, Section 2 of the U.S. Constitution provides that federal judicial power shall extend to all cases "arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." This constitutional provision authorizes Congress to give federal courts such jurisdiction. Today, the congressional grant of federal question jurisdiction is codified at 28 U.S.C. § 1331, which provides, "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." There is no amount-in-controversy requirement.

Diversity Jurisdiction

Article III, section 2 of the U.S. Constitution permits Congress to extend federal judicial power to controversies "between citizens of different states ... and between a state or the citizens thereof, and foreign states, citizens or subjects." Under § 1332, Congress gave the U.S. district courts jurisdiction over actions when: i) The parties to an action are: a) Citizens of different states, b) Citizens of a state and citizens or subjects of a foreign state, c) Citizens of different states and citizens or subjects of a foreign state are additional parties, or d) A foreign state as plaintiff and citizens of a state or different states, and ii) The amount in controversy in the action exceeds $75,000. In general, when these requirements are met, a federal court may exercise jurisdiction over the action, regardless of the legal subject of the controversy. This is known as diversity-of-citizenship jurisdiction or, more commonly, diversity jurisdiction.

Full Faith and Credit Between States

Article IV, Section 1 of the U.S. Constitution provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The clause is invoked primarily to enforce the judgment of one state court in another state. If a valid judgment is rendered by a court that has jurisdiction over the parties, and the parties receive proper notice of the action and a reasonable opportunity to be heard, then the Full Faith and Credit Clause requires that the judgment receive the same effect in other states as in the state where it was rendered. Thus, a party who obtains a judgment in one state may petition the court in another state to enforce the judgment. In general, the issues are not re-litigated, and the court in the state in which enforcement is sought must honor the judgment of the other state's court. The same principle applies to challenges based on an alleged lack of personal or subject matter jurisdiction; a party against whom enforcement is sought may collaterally challenge the original state judgment based on lack of personal jurisdiction or subject matter jurisdiction only if the jurisdictional issues were not litigated or waived in the original action. Durfee v. Duke, 375 U.S. 106 (1963). The requirement of full faith and credit extends to the res judicata effect of the original state-court judgment. Thus, if the original state-court judgment would bar a subsequent action in the original state, then it acts to bar a subsequent action in any other state. This is the case even if the subsequent action would otherwise be permitted in that state. (See § IX.D. Claim Preclusion (Res Judicata), infra, for a discussion of res judicata generally.)

Collateral Attack - Personal Jurisdiction

Article IV, Section 1 of the U.S. Constitution, the Full Faith and Credit Clause, ensures that judicial decisions rendered by the courts in one state are recognized and honored in every other state (see § IX.C. Full Faith and Credit, infra). Such decisions, however, are recognized only to the extent that a valid judgment was rendered by a court that had jurisdiction over the parties, and the parties received proper notice of the action and a reasonable opportunity to be heard. For example, if a default judgment has been entered against a defendant in an action in one state, and the plaintiff sues to enforce the judgment in another state, then the defendant may collaterally attack the judgment on the basis of lack of personal jurisdiction. If, however, the defendant had both notice and an opportunity to be heard, then a collateral attack on the judgment is not permitted under the doctrine of res judicata (see § IX.D. Claim Preclusion (Res Judicata), infra). Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522 (1931).

Respondeat Superior - Employer's Right of Control

As a general rule, the employer is vicariously liable for the employee's torts if the employer has the right to control the activities of the employee. Absent a right to control, the person is likely an independent contractor.

Negligence - Tenants

As an occupier of land, the tenant continues to be liable for injuries to third parties arising from dangerous conditions within the tenant's control, regardless of whether the land owner has liability.

Grounds for Reformation, Rescission, and Cancellation

As equitable remedies, reformation, rescission, and cancellation require justification for modifying or negating existing legal rights. Generally, defenses that can be raised to the formation or enforcement of a contract can serve as grounds for these remedies (see I.E. Defenses to Formation, supra). Among the most prominent grounds are mistake, fraud, undue influence, duress, and lack of capacity. These grounds must have occurred prior to or contemporaneously with the execution of the instrument or formation of the contract.

Strict Product Liability - Responsibility for Defect

As long as the seller is a commercial supplier of the product, she is subject to strict liability for a defective product, even if the revenue from sales of the product is not a significant portion of her business. The seller is strictly liable even if the seller was not responsible for the defect in any way and even when the product is not purchased directly from the seller.

Mortgagee's modification or release of a transferee's obligation

As transferor, the original mortgagor-borrower is relieved of personal liability if the transferee's obligation is modified by the mortgagee-lender. In addition, a complete release from liability granted by the mortgagee to the transferee usually results in the discharge of the mortgagor's personal liability on the mortgage obligation.

Family law jurisdiction

As with a court hearing other matters, a court hearing a family-related dispute must generally have both subject-matter jurisdiction and personal jurisdiction. Most states have statutory residency requirements, typically ranging from six weeks to two years, for a court to have subject-matter jurisdiction. The Full Faith and Credit Clause applies to divorce decrees as long as one of the spouses was a resident of the state that granted the decree. Matrimonial courts have full equity powers in matrimonial actions, which include: (1) Division of property; (2) Divorce or annulment; (3) Custody; (4) Support and alimony; (5) Award of attorney's fees; (6) Enforcement of separation agreements; and (7) All other matters related to matrimonial actions.

Defeasible Fees

As with a fee simple absolute estate, a defeasible fee is ownership of potentially infinite duration. But, unlike a fee simple absolute estate, a defeasible fee may be terminated by the occurrence of an event. Three defeasible fee simples that you will encounter are (1) fee simple determinable, (2) fee simple subject to a condition subsequent, and (3) fee simple subject to an executory interest.

Fee simple subject to a condition subsequent vs. fee simple determinable

As with a fee simple determinable, the fee simple subject to a condition subsequent is freely alienable by the owner during his life, and upon his death, it is devisable and descendible. Unlike a fee simple determinable, termination of a fee simple subject to a condition subsequent is not automatic. Upon occurrence of the stated condition, the present fee simple will terminate only if the grantor affirmatively demonstrates intent to terminate (e.g., by bringing an eviction action). If the language in the conveyance is ambiguous, courts typically adopt a preference for the fee simple subject to a condition subsequent over a fee simple determinable.

License to real property

As with an easement, a license is a nonpossessory right to enter another's land for some delineated purpose. Unlike an easement, a license is freely revocable unless coupled with an interest or detrimentally relied upon, in which case the license is irrevocable. An irrevocable license based on detrimental reliance is the functional equivalent of an easement by estoppel with one exception: an easement continues to bind successors to the servient estate while a license only binds the licensor. When the language of the permission is ambiguous, courts prefer to interpret the language as granting a license. A license may be created without consideration or a writing. Because no writing is required, a license is created when there is an oral attempt to create an easement or a written attempt otherwise fails due to the Statute of Frauds. If the licensee then expends money or otherwise detrimentally acts in reliance on the license, a court may recognize an equitable easement. In addition to a specific revocation by the licensor, a license is revoked when the licensor dies or the servient estate is transferred. Usually, a license cannot be transferred by the licensee, and the attempt to do so results in the loss of the license.

Strict Product Liability - Damages

As with negligence claims, the plaintiff is entitled to recover damages for any personal injury or property damage. A claim for purely economic loss generally is not allowed under a strict-liability theory but must be brought as a breach?of?warranty action, as must a claim for harm to the product itself and any consequential damages arising therefrom.

Respondeat Superior - Intentional Torts generally

As with negligence, an employer's vicarious liability for an employee's intentional tort depends on whether the employee was acting within the scope of employment. Generally, an employer is not liable for the intentional tort of an employee. For example, if an employee, acting on a personal grudge, punches a customer, the employer probably will not be held liable. There are two exceptions, however. Restatement (Third) of Agency §7.07.

Lease Assignee's Rights and Liabilities

Assignee tenants are in privity of estate with the landlord, and thus they are liable to the landlord for the rent and any other covenants in the lease that run with the lease. However, if the assignee tenant reassigns the leasehold to a subsequent tenant, then the assignee tenant's privity with the landlord ends. Thus, he is no longer liable because the subsequent tenant is now in privity with the landlord.

Cross-claims, in personam jurisdiction, and venue

Because the parties are already before the court, personal jurisdiction is satisfied. Additionally, if venue was proper over the original claim, then a party cannot object to venue with regard to the cross-claim.

Strict Product Liability - Assumption of the Risk

Assumption of the risk is a subjective standard. The plaintiff must be aware of the danger and knowingly expose himself to it. Voluntary and knowing assumption of the risk is a complete bar to recovery in contributory-negligence jurisdictions and in a small number of comparative-fault jurisdictions. Because traditional assumption of the risk has been eliminated in most comparative-fault jurisdictions, in those states, a plaintiff's assumption of a risk will reduce his recovery in proportion to his degree of fault, but it will not be a complete bar to recovery.

Exclusion of Witnesses

At a party's request or upon the court's own initiative, the court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses. Some witnesses, however, may not be excluded under this rule, including: i) A party who is a natural person; ii) An officer or employee of a party that is not a natural person, after the individual has been designated as the party's representative by its attorney; iii) A person whose presence is essential to a party's presentation of its case, such as a police officer in charge of the investigation in a criminal case; or iv) A person, such as a victim, whose presence is permitted by statute. Fed. R. Evid. 615. Note that a victim may be excluded if the court determines, by clear and convincing evidence, that the victim's testimony would be materially altered by the victim hearing other testimony. 18 U.S.C. §3771.

Motion to terminate or limit an oral deposition

At any time during an oral deposition, the deponent or a party may move to terminate or limit such deposition on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. Rule 30(d)(3)(A).

Support During Marriage

At common law, a husband was obligated to support his wife, and the duty was enforceable under the necessaries doctrine. A necessary item was something suitable to the parties' station in life, including medically necessary care. Most jurisdictions have modified the necessaries doctrine to apply equally to both spouses, and often refer to them as "family expense" statutes. A minority of jurisdictions have abolished the doctrine as a violation of equal protection rights. In those jurisdictions retaining the doctrine, a creditor may sue either spouse for payment of necessaries, but it may be required to seek payment first from the incurring spouse.

Pre-Existing Duty Consideration under Common Law

At common law, a promise to perform a preexisting legal duty does not qualify as consideration because the promisor is already bound to perform (i.e., there is no legal detriment). Note that if the promisor gives something in addition to what is already owed (however small) or varies the preexisting duty in some way (however slight), most courts find that consideration exists. Partial payment of a liquidated debt is invalid for a lack of consideration, unless there is a compromise of a claim disputed in good faith. This exception applies even if it later becomes apparent that the reason for disputing the claim was invalid. Restatement (Second) of Contracts § 74.

Termination of Tenancy at Will

At common law, a tenancy at will could be terminated by either party without advance notice, but the tenant had to be given a reasonable time in which to vacate the premises. By statute, most states now require that a party give advance notice in order to terminate a tenancy at will. A tenancy at will can also be terminated by operation of law upon the death of either party, because of waste or assignment by the tenant, or upon transfer or lease of the property to a third party by the landlord. Restatement (Second) of Property: Landlord and Tenant §1.6. If the agreement gives only the landlord the right to terminate at will, a reciprocal right of the tenant to terminate at will is implied. If the agreement gives only the tenant the right to terminate at will, the landlord is not given a similar right. Moreover, absent clear language in the lease that it is a tenancy at will, it may be construed as a determinable estate (e.g., an estate for years determinable). A tenancy that is terminable at the will of one party only may be unconscionable. Restatement (Second) of Property: Landlord and Tenant §1.6, cmt.g.

Duty of Tenant to Avoid Waste

At common law, a tenant was held to the same standards of waste imposed on a life tenant, including the duty not to commit affirmative waste (i.e., damage to the property), ameliorative waste (i.e., alterations to the property, even if the value of the property increases), or permissive waste (i.e., failure to prevent or repair damage).

Revocation under Common Law

At common law, a written revocation (as well as a written rejection or acceptance) is received when it comes into the possession of the person addressed or the person authorized to receive it on his behalf, or when it is deposited in some place he has authorized for deposit for this or similar communications. Restatement (Second) of Contracts § 68.

Defense of Property - Force to Regain Possession of Land

At common law, an owner or a possessor of land was permitted to use reasonable force to regain possession of that land from one who had wrongfully taken possession of it. However, modern statutes provide procedures for recovery of realty; therefore, the use of force is no longer allowed.

Contributory Negligence - Traditional

At common law, and in a handful of states, the plaintiff's contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff's own negligence contributed to the harm. Examples of contributory negligence include: (1) A plaintiff-pedestrian's crossing the street against the light; and (2) A plaintiff driving at an unreasonable speed that deprived him of the opportunity to avoid a traffic accident. A rescuer who takes significant risks when attempting a rescue may also be permitted to recover, despite the rescuer's negligence. Contributory negligence is not a defense to an intentional tort, gross negligence, or recklessness.

Landlord Remedy for Abandonment by Tenant

At common law, if the tenant unjustifiably abandoned the leasehold, then the landlord could treat the abandonment as an offer of surrender and could accept by retaking the premises.

Contract Modification under Common Law

At common law, modification of an existing contract must be supported by consideration. Agreements to modify a contract may still be enforced if: (1) There is a rescission of the existing contract by tearing it up or by some other outward sign, and then the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract; (2) There are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered if those difficulties would make performance impracticable; or (3) There are new obligations on both sides.

Material Breach of the Lease by the Landlord

At common law, the doctrine of independent covenants usually prevented the tenant from avoiding the obligation to pay rent despite the landlord's material breach of the lease. However, even at common law, a landlord who breached the covenant of quiet enjoyment could give the tenant the right to terminate the lease and cease paying rent. In addition, most states give tenants various options with regard to the payment of rent if a landlord violates the implied warranty of habitability in a residential lease (e.g., establishment of an escrow account into which the rent is paid, deducting the cost of repairs incurred by the tenant from the rent paid).

Timing of request for jury instruction

At the close of evidence, a party may file and furnish to every other party proposed jury instructions. The court may require that the party do this at an earlier reasonable time, including prior to trial, but even after the close of evidence, a party has the right to file requests for instructions on issues that could not reasonably have been anticipated at that earlier time. In addition, the court may permit a party to file an untimely request. Rule 51(a).

Prejudgment Attachment

At the commencement and through the course of an action, a plaintiff may file a motion for prejudgment attachment as allowed by the state where the court is located. A prejudgment attachment provides for seizing a person or property to secure satisfaction of a potential judgment. Federal statute governs the extent to which the state statute may be applied, and remedies include arrest, attachment, garnishment, replevin, sequestration, and other equivalent remedies. In addition to filing the motion, the plaintiff must give the defendant notice and an opportunity to be heard by preparing a writ of attachment in addition to a summons and complaint. A court will only grant a prejudgment attachment if the plaintiff shows that there is a likelihood of success of recovering an amount equal to the amount being sought to attach. Rule 64.

Error in the debtor's name in a financing statement

Because financing statements are indexed under the name of the debtor, a financing statement that fails to accurately contain the debtor's name is seriously misleading and therefore not effective to perfect the security interest. However, when a standard search of the filing office records under the debtor's correct name would disclose such a financing statement, the erroneous name does not make the financing statement seriously misleading. UCC § 9-506(b), (c).

Trespass to Land - Appropriate Plaintiffs

Because it is the right to possession that is being protected, anyone in actual or constructive possession of land may bring an action for trespass (e.g., owner, lessee, adverse possessor).

Parental Consent - Religion

At times, the parent's religious beliefs can conflict with what may be in the child's best interests. Often seen in cases in which medical treatment contradicts religious beliefs, the court can intervene, under the theory of parens patriae, to protect a child when necessary medical care is needed to prevent serious harm to the child's health. Prince v. Massachusetts, 321 U.S. 158, 170 (1994) ("Parents may be free to become martyrs themselves. But it does not follow they are free...to make martyrs of their children."). In those situations, a child can be declared neglected and the medical treatment ordered. In some states, there are exemptions to the finding of abuse or neglect that permit the state to order the requisite medical care without finding the parent at fault. Such action by the court is typically taken only when the medical treatment is life-threatening and only after the court balances the risks and benefits of the medical treatment. The home state has jurisdiction if it has been the home state of the child within the six months prior to the beginning of the custody proceeding.

Negligence - Attorney's Fees

Attorney's fees and interest from the date of damage are not recoverable in a negligence action.

Attorney's Fees for Contracts

Attorney's fees are generally not recoverable by a successful litigant in a contract action unless the parties have agreed otherwise or there is specific law authorizing the recovery of such fees. The UCC does not authorize the recovery of such fees.

Attornment

Attornment is the tenant's acknowledgment of a new landlord. Although a tenant can do so formally in a writing, a tenant's payment of rent to the new landlord is deemed an attornment. At common law, the tenant's obligations under the lease did not come into existence until attornment. Today, a tenant's obligations to an assignee landlord arise automatically upon notice of the assignment, and attornment occurs primarily in the context of the transfer of ownership of leased commercial property. For example, a tenant in a commercial lease may be obligated under an attornment clause to acknowledge the tenant's lease obligations to a person who gains ownership of the property through a foreclosure sale.

Automatic Permanent Perfection Besides PMSI

Automatic permanent perfection also occurs in other situations, the most important of which for bar exam purposes are: i) The casual or isolated assignment of accounts or payment intangibles that does not transfer a significant part of the assignor's outstanding accounts or payment intangibles; and ii) Sale of a payment intangible or promissory note.

Palimony

Available in only a few states, palimony is support provided by one unmarried cohabitant to another after the dissolution of their relationship. First recognized in 1976 by the Marvin decision, palimony is available only when the cohabitants have lived together in a stable, long-term relationship. Marvin v. Marvin, 557 P.2d 106 (Cal. 1976). The treatment of such cohabitation agreements and the resulting support of palimony vary among jurisdictions. A majority of jurisdictions distinguish between contracts that are based on sexual services and those in which the agreement is independent of the illicit relationship. Some courts also permit remedies to unmarried couples based on an implied-in-fact contract, resulting trust, constructive trust, or quantum meruit theories. In most states, the Statute of Frauds does not require that an express contract between cohabitants be in writing. Alimony and spousal maintenance payments are generally taxable as ordinary income to the recipient and deductible by the payor.

Termination of Periodic Tenancy

Because a periodic tenancy automatically renews, notice is generally required to terminate this tenancy. The same circumstances discussed with regard to a tenancy for years may also give rise to the termination of a periodic tenancy prior to the end of a term.

Quasi-easement

Because an owner cannot have an easement on his own land, this is considered a "quasi-easement." The scope of a quasi-easement is determined by the prior use that gave rise to the easement, but it can change over time if the changes are reasonably foreseeable at the time of conveyance.

Sublessee's Rights and Liabilities

Because the sublessee is not in privity of estate or contract with the landlord, the sublessee is not liable to the landlord for the rent or any other covenants in the lease, but he is liable to the lessee. However, if the sublessee expressly assumes the rent covenant (or any other covenants), then he becomes personally liable to the landlord. Although the sublessee can enforce all covenants made by the original lessee in the sublease, the sublessee cannot enforce any covenants made by the landlord.

Parol Evidence Rule

Before signing a written agreement, parties typically negotiate their contract through a series of conversations, phone calls, letters, faxes, e-mails, etc. When the written contract is finally signed, it may or may not include all of the terms of these negotiations, or it may change the terms in some way. The parol evidence rule generally prevents a party to a written contract from presenting extrinsic evidence of a prior or contemporaneous agreement that contradicts the terms of the contract as written. The rule is concerned with whether any of the earlier oral or written terms are part of the parties' contract, even though they are absent from the parties' written agreement.

Prospective Inability to Perform Between Merchants

Between merchants, the reasonableness of grounds for insecurity and the adequacy of any assurance offered are determined according to commercial standards. Thus, for example, if a supplier writes to a manufacturer demanding assurances of financial solvency, and the manufacturer provides its latest audited financial statements as well as a satisfactory credit report from his banker, then that would likely constitute adequate assurances of his financial status.

Divorce - Bigamy

Bigamy, which in most jurisdictions is also grounds for annulment, occurs when one of the parties in the marriage knowingly entered into a prior legal and existing marriage before entering into the current marriage.

Assault - Bodily Contact

Bodily contact is not required for assault. The prototypical assault occurs when the plaintiff sees the defendant throw a punch at him. Regardless of whether the punch connects (and therefore causes a battery), the apprehension of the contact is sufficient for assault.

Damages for Lack of Marketable Title

Both the buyer and the seller can recover expectation damages based on the difference between the contract price and the market value on the date of performance. In some jurisdictions (about half), if the seller's breach resulted from an inability to deliver marketable title, but the seller acted in good faith, then the buyer's damages are limited to the buyer's out-of-pocket expenses. In addition, a buyer or seller can recover incidental damages, such as expenses associated with a title search or survey of the property.

Consent in agency relationships

Both the principal and the agent must consent to the agency relationship. The agent does not have to verbally consent, but she may manifest assent by performing acts on behalf of the principal. Restatement (Third) of Agency § 1.01, cmts. c, d; § 103 (2006). Note that termination of an agency relationship may be unilateral. The principal or agent may terminate the agency without the other's consent.

Breach of deed covenants - time

Breach of the present covenants occurs at the time of conveyance. In most states, the present covenants do not run with the land and cannot be enforced by subsequent grantees. Conversely, breach of a future covenant occurs only upon interference with possession by a third party. Future covenants run with the land and can be enforced by subsequent grantees.

Ceremonial Marriage - Expiration Date

By statute, most U.S. jurisdictions impose an expiration date on a marriage license.

Removals and exclusions under CAFA

CAFA allows any defendant to remove the case to federal court. If the class action claim is based only on federal securities law or corporate governance, then there is no federal jurisdiction under CAFA. This exclusion also applies to primary defendants who are governmental entities.

Irregularities in depositions

Certain errors and irregularities in depositions are waived if not objected to in a timely manner. There must be a written objection promptly served on the party giving notice when there are irregularities with the notice and its service. A seasonable objection must be made if there are errors in the manner of taking the deposition, while a motion to suppress is required when there are errors related to the signing, certification, and transmittal of depositions. Finally, in noting errors as to the form of the written questions, the party submitting the questions should receive notice within five days after service of the last questions authorized.

Child's Right to Support

Child support is the payment by one parent to the other for the support of a common child. The duration of child support varies with each jurisdiction. In all jurisdictions, both parents (custodial and noncustodial), regardless of marital status, are legally required to support their minor children (i.e., unemancipated and 18 years of age or younger). Gomez v. Perez, 409 U.S. 535 (1973) (a state law that bases the existence of a support obligation on marital status violates Equal Protection). Some jurisdictions, however, continue that obligation through college. Additionally, child support can be continued, even indefinitely, for a child incapable of self-support, provided that the inability to support is linked to a physical or mental disability. The payment of child support is entirely separate from visitation rights. Such rights cannot be denied for nonpayment of support. Parents cannot bargain away child-support payments, regardless of whether they intended to have a child. Parents can enter into private agreements regarding the payments, but they cannot agree to any release or compromise that would negatively affect the child's welfare.

Rights and Obligations of Children generally

Children are provided with special rights and limitations compared to adults. These distinctions are meant to protect children as well as provide them with expanded rights when necessary. In many cases, as with property and contracts, children may convey property or enter into contracts as minors, but upon the age of majority, they have the option of disaffirming the transaction. Conversely, a child does not have the capacity to make a valid will.

Children of Annulled Marraige

Children of an annulled marriage are nevertheless considered marital children.

Child Support - Civil Contempt

Civil contempt requires compliance with a court order. An obligor with the ability to pay may be found in civil contempt and can be sent to jail and held until the amount owed is fully paid. Jurisdictions are currently split regarding whether the appointment of counsel is constitutionally required in civil contempt cases when the defendant is indigent. Cf. Rodriquez v. Eighth Judicial Dist. Court, 102 P.3d 41 (Nev. 2004) (Sixth Amendment right to counsel inapplicable); Pasqua v. Council, 892 A.2d 663 (N.J. 2006) (counsel for civil contempt obligors is required under the Due Process Clause and state constitution).

Divorce - Collusion

Collusion occurs when both spouses "conspired to fabricate" grounds for divorce. Collusion defenses are not as common since the adoption of no-fault grounds in many jurisdictions.

Commingled Goods Under Article 9

Commingled goods are goods that are physically united with other goods in such a manner that their identity is lost in a product or mass. UCC § 9-336(a). There is not a security interest in specific goods that have been commingled. However, a security interest may attach to the product or mass that results when the goods are commingled, such as a security interest in inventory of a manufacturer who makes brass by combining copper and zinc. UCC § 9-336(b). An existing security interest in collateral that subsequently becomes commingled goods is transferred to the resulting product or mass. Once the goods have been commingled, a security interest cannot be created in separate goods. UCC § 9-336(c).

Examples of Abnormally Dangerous Activities

Common abnormally dangerous activities include mining, blasting, using explosives, fumigating, crop dusting, excavating, disposing of hazardous waste, storing gasoline in residential areas, storing toxic chemicals and gases, and storing large quantities of water and other liquids. Damage or injury caused by flying aircraft is no longer subject to strict liability, though a few states still apply the doctrine to ground damage from an airplane crash.

Common-law Marriage

Common-law marriages are defined as marriages when the parties: (1) Agree they are married; (2) Cohabit as married; and (3) Hold themselves out in public as married. UMDA § 209. Unlike with a ceremonial marriage, no ceremony takes place and no license is issued for a common-law marriage. A common-law marriage is not valid if either party was married to someone else at the time that the common-law marriage was entered into. UMDA § 209.

Divorce - Community Property

Community property is a method for the distribution of marital assets that is used in nine states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. The guiding principle behind community property is that marriage is a partnership. Most community-property states require an equal division of the marital property.

Basis of Compensatory Damages

Compensatory damages are meant to compensate the nonbreaching party for actual economic losses. The goal of compensatory damages is to put the nonbreaching party in as good a position as performance would have done, plus consequential and incidental damages, if any, less possible mitigation of damages. Alternatively, the plaintiff might recover liquidated damages, reliance damages, or restitutionary relief.

FHA Complaint Process

Complaints filed with HUD are first investigated by the Office of Fair Housing and Equal Opportunity (FHEO). There must be a causal connection between the prohibited behavior and the alleged violation. If FHEO finds reasonable cause to believe that discrimination occurred, then the case goes to an administrative hearing within 120 days, unless either party elects for the case to be heard in federal court. Before an administrative hearing is ordered, HUD attempts to reach an agreement among the parties, and any conciliation agreement will cease action on the complaint. For a conciliation agreement to cease action on the complaint, however, it must protect both the complainant and the public interest. The breach of a conciliation agreement may result in suit by the attorney general.

Improper Questions

Compound question: A question that requires answers to multiple questions is compound and is not permitted. Assumes facts not in evidence: A question that assumes as true facts that have not been established is not permitted. Argumentative: A question that is intended to provoke an argument, rather than elicit a factual response, is not permitted. Calls for a conclusion or opinion: A question that requires the witness to draw a conclusion or state an opinion that he is not qualified to make is not permitted. Repetitive: A question that has been asked and answered is not permitted, although judges may allow some repetition, particularly on cross-examination.

Condemnation - Real Property

Condemnation is the taking of land for public use or because it is unfit for use. The right of a tenant upon condemnation depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning that only a portion of the leased property is condemned or the property is temporarily condemned, then the tenant must continue to make his rent payments. The tenant is entitled to compensation for the portion of the property that was condemned or the time he was dispossessed from the leased property. If the condemnation is complete, meaning that the entire leased property is taken for the balance of the lease term, then the tenant is discharged from his rent obligation and is entitled to compensation for the taking.

Condominium Units

Condominium unit ownership is fee ownership. In a condominium, each unit owner typically owns the interior of his unit, including the interior surfaces of the common elements (e.g., walls, ceilings, and floors). Each unit owner is responsible for the taxes, insurance, and maintenance expenses related to his unit, and, as owner of a fee interest in his unit, may mortgage that interest.

IIED - Extreme and Outrageous Conduct

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme. While liability generally does not extend to mere insults, threats, or indignities, a defendant's abusive language and conduct may be sufficiently "extreme and outrageous" if either: (1) The defendant is in a position of authority or influence over the plaintiff, such as a police officer, employer, or school official, or traditionally an innkeeper or an employee of a common carrier; or (2) The plaintiff is a member of a group with a known heightened sensitivity (e.g., young children, pregnant women, or elderly persons).

Divorce - Connivance

Connivance is consent to or participation in the marital wrong, usually adultery (e.g., allowing or benefitting from a spouse's prostitution).

Intentional Tort Defense - Mistaken Consent

Consent by mistake is valid consent unless the defendant caused the mistake or knew of it and took advantage of it.

Defamation - Consent

Consent by the plaintiff is a defense, but as with other torts, a defendant cannot exceed the scope of the plaintiff's consent.

Intentional Tort Defense - Consent by Duress

Consent given while under duress (physical force or threats) is not valid. The threat, however, must be of present action, not of future action.

Intentional Tort Defense - Fraudulent Consent

Consent induced by fraud is invalid if it goes to an essential matter. If the fraud that induced the consent goes only to a collateral matter, then the consent is still valid.

Divorce - Consent

Consent is a defense to desertion or adultery.

Assumption of Risk vs. Consent

Consent is a defense to intentional torts, whereas assumption of the risk applies to negligence actions and actions alleging strict liability.

Intentional Tort Defense - Injuries from sports

Consent may also be implied by custom or usage (e.g., participation in a contact sport). The majority of jurisdictions that have considered the issue of when a participant in an athletic contest can recover have concluded that the injured player can recover only for a reckless disregard of a player's safety, such as a violation of a safety rule designed primarily to protect participants from serious injury.

Consignments under Article 9

Consignments may fall within the scope of Article 9. If so, the consignor's security interest in the consigned goods is treated as a purchase-money security interest (PMSI) in inventory. UCC §§ 9-109(a)(4), 9-103(d). In order for a consignment to be subject to Article 9, the following requirements must be met: i) A person (i.e., the consignor) must deliver goods to a merchant for the merchant to sell; ii) The merchant (i.e., the consignee) must: a) Deal in goods of that kind, b) Not operate under the name of the consignor, c) Not be generally known by its creditors to be substantially engaged in selling the goods of others, and d) Not be an auctioneer; iii) With respect to each delivery, the value of the goods delivered must be at least $1,000 at the time of the delivery; and iv) The goods must not be consumer goods immediately before the delivery.

Battery - Harmful or Offensive Contact

Contact is harmful when it causes injury, physical impairment, pain, or illness. Contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test). Note that a defendant may be liable if he is aware that the victim is hypersensitive but proceeds to act nonetheless. In such a case, the fact that a reasonable person would not find the contact offensive is not a defense. The plaintiff need not be aware of the contact when it occurs in order to recover.

Battery - Plaintiff's Person

Contact with anything connected to the plaintiff's person qualifies as contact with the plaintiff's person for the purposes of battery (e.g., a person's clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Unwed Cohabitation Agreements

Contracts between unmarried persons are invalid if the only consideration is sexual relations. Agreements in which other consideration, such as full-time companionship or cooking, is exchanged for financial support will generally be enforced. These contracts may be express, regarding earnings or property rights, or implied. However, courts are less likely to enforce an implied contract.

Real Property and Specific Performance

Contracts involving the transfer of an interest in real property may be enforced by an order of specific performance because every parcel of real property is considered unique.

One Year Provisions and Statute of Frauds

Contracts that cannot be performed within one year because of the constraints of the terms of the agreement must be in writing. The year starts the day after the contract is made. It is the time that the contract is made that is important, not the length of performance. The fact that a contract is not completed within one year does not mean that it is voidable under the Statute of Frauds. For the Statute to apply, the actual terms of the contract must make it impossible for performance to be completed within one year. Full performance by either party to the contract will generally take the contract out of the Statute of Frauds. Although part performance would not take the contract out of the Statute of Frauds, restitution would be available to the party who performed.

Statute of Frauds generally

Contracts that fall within the Statute of Frauds are unenforceable unless evidenced by a writing. The writing must: (1) Be signed by the party against whom enforcement is sought; and (2) Contain the essential elements of the deal. The writing need not be formal (i.e., receipts or correspondence can serve as memoranda). The essential elements may be in more than one writing only if one of the writings references the other(s). The writing need not be delivered to the party trying to enforce the contract. Even if it is lost or destroyed, it still operates to satisfy the Statute of Frauds, and its prior existence can be proved by oral evidence.

Spousal Maintenance - contributions to the marriage

Contributions by one spouse to the marriage, particularly those that enhanced the earning potential of the other spouse (e.g., education, training), may be considered.

Negligence - Contributory Fault

Contributory fault occurs when a plaintiff fails to exercise reasonable care for her own safety and thereby contributes to her own injury. Note that when a plaintiff is suing a defendant for the negligent rendering of services, such as medical services, the plaintiff's negligent conduct in creating the condition that the defendant has been employed to remedy is not taken into account.

Negligence - Wrongful Birth

Conversely, many states do permit parents to recover for "wrongful birth" (failure to diagnose a defect) or "wrongful pregnancy" (failure to perform a contraceptive procedure). Generally, the mother can recover damages for the medical expenses of labor as well as for pain and suffering. In the case of a disabled child, the parents may be able to recover damages for the additional medical expenses of caring for that child, and, in some states, may recover for emotional distress as well.

Transfer of note without mortgage

Conversely, transferring the note without the mortgage is possible because the mortgage follows the note. Although it is customary for the transferee to obtain and record a mortgage assignment, no separate written assignment of the mortgages is necessary.

Spousal Maintenance - Time

Courts also consider the time it will take for a spouse to find employment or to complete any education or training necessary for a job.

Visitation and sexual conduct

Courts are unlikely to restrict visitation because of a parent's cohabitation with another or a parent's sexual relationship unless the cohabitation has an adverse impact on the children. Although jurisdictions differ in their handling of gay and lesbian relationships, the majority of jurisdictions do not prohibit overnight visitation unless the opposing parent can demonstrate a specific danger to the child's physical or emotional health.

Visitation and HIV/AIDS

Courts cannot deny visitation merely because a parent has HIV/AIDS. North v. North, 648 A.2d 1025 (Md. App. 1994).

Family Courts and indigent parties

Courts cannot require that an indigent party pay costs and fees to access the court system. Such requirements are unconstitutional. Boddie v. Connecticut, 401 U.S. 371 (1971). Although there is no legal right to counsel for indigent parties in divorce proceedings, the court has the discretion to award attorney's fees and costs if the party is unable to afford the services of legal counsel.

Spousal Maintenance - financial resources

Courts consider the financial resources of the spouse seeking support, including property to be awarded in the divorce and any child support. They also take each spouse's earning potential into account, as well as the ability of the spouse from whom support is sought to pay.

Factors in distribution of marital property

Courts consider the following factors in the distribution of property: (1) Length of the marriage; (2) Prior marriages; (3) Age, health, earnings, earning potential, liabilities, and needs of both spouses; (4) Contributions to education; (5) Needs for future acquisitions; (6) Income, medical needs, retirement of both spouses; (7) Contributions to increases in marital property, including homemaking and child-rearing services; (8) Value of separate property; (9) Reduction in valuation in marital property by one spouse; (10) Standard of living; (11) Economic circumstances of each spouse at the time of divorce; and (12) Custodianship of any minor children. In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property. However, dissipation of marital property may be a factor. Dissipation occurs when one spouse uses marital property for his sole benefit after the marriage has irreconcilably broken down, such as the purchase of expensive gifts for a paramour.

Negligence - Modern Trend with Possessors of Land

Courts in the other half of jurisdictions (as well as the Third Restatement) require that a reasonable standard of care be exercised for all land entrants except trespassers, abolishing the distinction between invitees and licensees. (In the case of the Third Restatement, the rule applies to all land entrants except for "flagrant" trespassers.) The land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land. As for natural conditions, the general rule is that there is no duty to remove or protect against the condition, although there is an exception for rotting trees in densely populated areas.

Res Ipsa Loquitur - Comparative-Fault

Courts in the vast majority of jurisdictions that have adopted comparative fault also are inclined to loosely apply the third requirement—that the harm must not be due to any action on the part of the plaintiff (whether such action constitutes contributory negligence or not)—because such a requirement would otherwise be in tension with the law holding that the plaintiff's contributory negligence is no longer a total bar to recovery.

Child Support - Sanctions Besides Contempt

Courts may impose other sanctions, such as issuing judgments, intercepting tax refunds, credit bureau reporting, suspending the obligor's driver's license or occupational license, seizing property or assets, garnishing the noncomplying party's wages, and ordering the payment of attorney's fees. Additionally, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) permits the denial of a passport application when the noncustodial parent is more than $5,000 in arrears on his child-support obligation. PRWORA § 312.

Promissory Estoppel and Charitable Subscriptions

Courts often apply the doctrine of promissory estoppel to enforce promises to charitable institutions. In some cases, they presume that the charity detrimentally relied on the promised contribution. A charitable subscription (i.e., a written promise) is enforceable under the doctrine of promissory estoppel without proof that the charity relied on the promise. Restatement (Second) of Contracts § 90(2).

Child Custody - Exclusive-Continuing Jurisdiction

Courts that make the initial ruling in a custody case have exclusive jurisdiction over the matter until the court determines that: (1) The parties no longer reside in the state; or (2) The child no longer has a significant connection to the state, and any substantial evidence connected to the child's condition is no longer available in the state.

Best-interest-of-the-child Siblings

Courts traditionally avoid separating siblings from each other in order to maintain stability and promote sibling relationships.

Transfers of Covenants and Equitable Servitudes

Covenants, equitable servitudes, and implied reciprocal servitudes create real property rights and obligations that are transferred along with the real property interest itself to a subsequent owner when the requirements discussed above at §VI.B.1. Real Covenants and §VI.B.2. Equitable Servitudes are met. For a covenant or servitude to be enforceable against a subsequent owner, the key often is whether that owner had notice of the covenant or servitude. However, notice is not required for the burden to run against a transferee who is not a bona fide purchaser.

Termination of Covenants and Equitable Servitudes

Covenants, equitable servitudes, and implied reciprocal servitudes terminate as easements do, upon written release, merger of title, abandonment, estoppel, condemnation, or sale to a bona fide purchaser who can assert the protection of a recording act.

Recording of judgment liens

Creditors are protected only against claims that arise after a judgment lien against the debtor is recorded, unless otherwise indicated by statute. However, the majority of jurisdictions protect purchasers of property at a judicial sale against all unrecorded interests subject to the recording act. Note that a lawsuit may be pending that could affect title to the property. In such case, any party to the action may record a lis pendens (a notice of pending action), which will serve as notice to third parties of the claims pending in the lawsuit.

Child Support - criminal contempt

Criminal contempt is a specific jail sentence imposed upon an obligor who willingly fails to pay the amount owed. When criminal contempt is sought by the court, the defendant is entitled to additional constitutional protections. Hicks v. Feiock, 485 U.S. 624 (1988) (violative of the Fourteenth Amendment Due Process Clause to place the burden of proving an inability to make support payments on the defendant).

Enforcement of Foreign Child Custody decrees

Custody and visitation orders between states are enforceable under the Full Faith and Credit Clause if the other state's decree has been registered in the state seeking enforcement. Generally, a local court cannot modify an out-of-state decree, unless (i) the foreign court declines jurisdiction and the local court has proper jurisdiction, and (ii) the out-of-state party is given sufficient notice of the hearing in the local court.

Damages under Implied Warranty for New Homes

Damages are generally based on the cost of repairs to bring the residence into compliance with the warranty. However, when the defects cannot be corrected without substantial destruction of the residence, damages may be based on the difference between the value of the residence with the warranty and the value of the residence as built.

Foreseeability for Consequential Damages

Damages are recoverable if they were the natural and probable consequences of breach, or if they were "in the contemplation of the parties at the time the contract was made," or if they were otherwise foreseeable. Hadley v. Baxendale, 156 Eng. Rep. 145 (Ex. Ch. 1854). For example, with regard to a contract to lend money, because it is assumed that a borrower will be able to obtain a substitute bank loan, the borrower's lost profit due to the failure of the lender to make the loan is considered unforeseeable.

Nominal Damages

Damages do not need to be alleged in a cause of action for breach. If no damages are alleged or no damages are proved, the plaintiff is still entitled to a judgment for "nominal" damages (e.g., one dollar).

Damages for Real Estate Contracts

Damages for failing to perform a real-estate sales contract also are measured by the difference between the contract price and the market value.

Defense of Property - Deadly Force

Deadly force may not be used merely in defense of property. A person may never use a deadly mechanical device (e.g., a spring-loaded gun) to defend her property.

Dedication of Real Property

Dedication is the giving of land by the lawful owner to the government for use by the public. The owner still retains the fee, but the public essentially holds an easement in trust such that the owner does not retain any rights that are inconsistent with the complete exercise and enjoyment of the public uses to which the property has been committed. The dedication may be express (through a deed) or implied, but it must be accepted by the public entity (which can be implied by use).

Slander

Defamation by spoken word, gesture, or any form other than libel is slander. To recover for slander, the plaintiff must plead and prove one of the following.

Libel

Defamation by words written, printed, or otherwise recorded in permanent form is libel. Today, it is generally—though not universally—accepted that defamatory radio and television broadcasts are libel, regardless of whether they are spoken from a script. Most courts addressing the issue have held that e-mail messages are categorized as libel. It is not yet clear whether courts will hold that tweets and text messages are libel or slander.

Defects of Marketable Title

Defects in title rendering title unmarketable include: (1) Title acquired by adverse possession that has not yet been quieted (i.e., supported by a judicial decree); (2) Future interests wherein the holders of such interests have not agreed to the transfer; (3) Private encumbrance (e.g., mortgage, covenant, option, or easement); (4) Violation of a zoning ordinance; or (5) Significant physical defect (e.g., an encroachment that is incurable). The above defects may be waived by the buyer in the contract of sale or subsequently.

When Contract Obligations Cannot Be Delegated

Delegation is not permitted when a party to the contract has a substantial interest in having the delegating party perform (for example, in a personal services contract involving taste or a special skill), or the delegation is prohibited by the contract.

Design Defects generally

Depending on the jurisdiction, courts apply either the consumer-expectation test or the risk-utility test to determine whether a design defect exists. Many jurisdictions use various hybrids of the two tests, and some states allow the plaintiff to prove a design defect under either test.

Use of depositions at trial

Depositions may be used by a party to impeach the testimony of the deponent as a witness or for any other purpose permitted by the Federal Rules of Evidence. Rule 32(a)(2). Pursuant to Rule 32(a)(3), an adverse party may use for any purpose the deposition of a party or a person who, when deposed, was the party's officer, director, managing agent, or designated deponent. In addition, a party may use for any purpose the deposition of a witness, whether or not a party, if the court finds that: i) The witness is dead; ii) The witness is more than 100 miles from the trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; iii) The witness cannot attend or testify because of age, illness, infirmity, or imprisonment; iv) The party offering the deposition could not procure the witness's attendance by subpoena; or v) On motion and notice, exceptional circumstances make it desirable in the interest of justice to permit the deposition to be used. Rule 32(a)(4). If admissible, a deposition may generally be offered against any party who was present or represented at the deposition or had reasonable notice of it.

Divorce - Desertion

Desertion (also called "abandonment") results when one spouse, without cause or the consent of the other spouse, voluntarily leaves the marital home with the intent to remain apart on a permanent basis. Most jurisdictions require that the abandonment be for a statutorily designated period of time. Some jurisdictions also find desertion when one spouse forces another out of the marital home, and there is a fear of harm if that spouse returns. If the parties separate by mutual consent, the ground of desertion will not apply.

Principal Place of Business and Diversity Jurisdiction

Determining where a corporation maintains its principal place of business is a question of fact more complicated than determining where a corporation is incorporated. A recent Supreme Court decision did away with looking toward where the corporation's actual physical operations were located. Instead, the Court held that principal place of business refers to the "nerve center" of the corporation. Hertz Corp. v. Friend, 559 U.S. 77 (2010). The nerve center is generally the location from which the high-level officers direct, control, and coordinate the activities of the corporation. Typically, the nerve center is the corporate headquarters. Unlike states of incorporation, a corporation has its principal place of business in only one state or foreign country.

Subdivision Development

Development of a large tract of land that is to be subdivided into parcels, typically for residential use, is subject to special governmental controls. Developers must submit and get approval on the development plan, including a plat (map), before development can take place. The plan must conform generally to regulations regarding, for example, the location and size of streets and sidewalks, water and sewer mains, and, if the development is large enough, parks and schools. The developer is usually required to construct the infrastructure (e.g., streets, sidewalks) as part of the process of developing the property, and then it is usually required to donate or dedicate the infrastructure to the local government or to pay a fee in lieu of doing so. Generally, such a requirement has been upheld unless it fails to bear a reasonable relationship to the size of the development.

Diversity Jurisdiction in Class Actions

Diversity in a class action brought pursuant to Rule 23 will generally be determined by the citizenship of the named members of the class bringing the lawsuit. For certain class actions, however, when the amount at issue totals more than $5,000,000, diversity will be met if any member of the plaintiff class is diverse with any defendant. § 1332(d)(2)(A).

Date of determination - diversity jurisdiction

Diversity is determined at the time the case is filed. Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962). There is no requirement that diversity exist at the time the cause of action arose. A change in citizenship after the filing of the case will not affect diversity jurisdiction that was in existence at the time of the filing. In addition, a change in the parties as a result of substitution or intervention will not affect diversity jurisdiction.

Aliens and Diversity Jurisdiction

Diversity jurisdiction based on alienage exists when there are one or more citizens or subjects of a foreign country (i.e., aliens) on one side of the lawsuit and one or more citizens of a state on the other. There is no diversity jurisdiction in an action by one foreign citizen or subject against another. Nor is there jurisdiction when an action is between a citizen of a state and an alien admitted to the United States for permanent residence who is domiciled in the same state as the citizen. § 1332(a)(2).

Stateless persons and Diversity Jurisdiction

Diversity jurisdiction does not exists if a party is an alien who is present in the United States and who is not a citizen or subject of a foreign country, or a party is a U.S. citizen whose domicile is a foreign country. Such persons are neither citizens of the United States nor citizens or subjects of a foreign country for purposes of diversity jurisdiction.

Rule of Complete Diversity

Diversity jurisdiction requires complete diversity between opposing parties in a case. There is no diversity of citizenship if any plaintiff in the case is a citizen of the same state as any defendant in the case or if any plaintiff and any defendant are aliens (i.e., citizens or subjects of a foreign country). Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806). Two plaintiffs in a case may be from the same state without destroying diversity, as long as no plaintiff is from the same state as any defendant in the case.

Design Defects - Risk-Utility Test

Do the risks posed by the product outweigh its benefits? Under the risk-utility test, in a majority of jurisdictions and under the Third Restatement, the plaintiff must prove that a reasonable alternative design was available to the defendant and the failure to use that design has rendered the product not reasonably safe. The alternative design must be economically feasible. Merely providing a warning does not necessarily prevent a product from being unreasonably dangerous.

Design Defects - Consumer-Expectation Test

Does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him?

Equitable Servitudes generally

Equitable servitudes are agreements about land use that are enforced at equity by injunction. The requirements for enforcement of an equitable servitude are not as stringent as those for enforcement of a real covenant.

Tax consequences of equitable distribution

Equitable distribution payments are not taxed in the same manner as regular income. Property that is transferred between divorcing spouses is tax-free at that time. The transferee's tax basis is the same as the transferor's, and the property becomes taxable when it is sold.

Easements by Prescription

Easements can be obtained by prescription similarly to the way land can be acquired by adverse possession. There must be continuous, actual, open, and hostile use for a specific period (e.g., 10, 15, or 20 years). Unlike with adverse possession, the use need not be exclusive (such as a public easement to access a beach). The scope of an easement by prescription is limited to the nature and extent of the adverse use.

Spousal Maintenance Factors

Each jurisdiction provides by statute the criteria to be applied by the court in determining the eligibility and amount of a maintenance award. The majority of jurisdictions consider some or all of the following factors when determining the support award: (1) financial resources, (2) standard of living, (3) time, (4) length of the marriage, (5) contributions to the marriage, (6) age and health, (7) marital misconduct.

Challenges to juror for cause

Each party is entitled to an unlimited number of challenges for cause, such as bias or a personal relationship with a litigant. The court rules on such challenges. 28 U.S.C. § 1870.

Condominium Common Areas

Each unit owner also owns the common areas of the building (e.g., lobby, hallways, stairs, elevators, swimming pool) together with the other unit owners as tenants in common. A unit owner has the non?exclusive right to access and use the common areas, but, unlike other tenants in common, does not have the right of partition with respect to the common areas. Each unit owner's tenancy-in-common ownership of the common areas is inseparable from his ownership of the unit itself. Each unit owner is assessed a fee for the maintenance expenses of the common areas that is paid to the association. In addition, each unit owner is allocated a portion of taxes attributable to the common areas, which is imposed directly on each unit owner by the taxing authority.

Grantor-grantee Indexes

Each yearly index is usually alphabetized by the last names of grantors and grantees. When searching the chain of title, the potential purchaser must first search for the grantor's name as a grantee (to ensure good title) in the grantee index, and he must then search for the name of the grantor's grantor as a grantee, and so on, until the title has been searched back to its inception (common-law rule) or as far back as the recording statute provides. Some states have enacted a marketable title act that establish search cutoff dates (e.g., 40 years). Then, the grantors are searched as grantors to verify the chain of title.

Classification of Easements

Easements are either tied to the land (appurtenant) or are personal to the holder (in gross), and they will give the holder a right that is either affirmative (the right to do something) or negative (the right to prevent another from doing something).

Easements appurtenant

Easements are presumed to be appurtenant (i.e., tied to the land) unless there are clear facts to the contrary. The benefits of an easement must correspond directly to the use and enjoyment of the possessor of the dominant estate.

Recorded Plat

Easements may also be implied without an existing use in a conveyance of lots sold in a subdivision with reference to a recorded plat or map that details streets leading to lots. An easement may be implied from a subdivision map or plat, may be created through eminent domain, and may arise by actual or implied dedication. Individuals who buy lots have an implied easement to be able to get to their lots that does not expire even if a public easement held by the city or county is vacated in the future.

Prospective Inability to Perform on Contract

Either party can demand assurance of performance if there are reasonable grounds for insecurity about the other party's ability or willingness to perform. Once such assurances are requested, performance may be suspended until they are provided. Failure to give adequate assurances within a reasonable time can be treated as repudiation. (Under the UCC, a reasonable time in which to give adequate assurances is limited to 30 days.) UCC § 2-609. Even then, the repudiating party can still retract his repudiation until his next performance is due, unless the other party has already materially changed his position or otherwise indicated that he considers the repudiation final. UCC § 2-611.

Revocation of Agency Relationship

Either party to the agency relationship may revoke or renounce consent that was previously given. A revocation or renunciation is effective as soon as the other party has notice of it. Either party has the power to terminate the agency relationship, even if they contracted not to do so. In that case, either party may be liable for breach of contract. The remedy for breach is limited to damages.

Uniform Child Custody Jurisdiction Act

Enacted prior to the UCCJEA, the UCCJA was established to create a uniform system to resolve interstate custody matters. Although the UCCJA was adopted by all 50 states, by the time of its adoption, Congress had enacted the Parental Kidnapping Prevention Act (PKPA), which conflicted in application with the UCCJA despite its common goal. In its original form, the UCCJA operated on principles that established jurisdiction over a child-custody case in one state and protected a custody order of that state from being modified in any other state as long as the original state retained jurisdiction. Unlike the UCCJEA and the PKPA, the UCCJA did not give first priority to the home state of the minor child. Similar to the PKPA, the UCCJA did not address enforcement of visitation rights. Almost all states have now replaced the UCCJA with the UCCJEA.

Defenses against Specific Performance

Equitable defenses, such as laches (prejudicial delay in bringing the action) or unclean hands (when the nonbreaching party is guilty of some wrongdoing in the transaction at issue) may be raised by the breaching party. A party may also wish to enter an injunction against the breaching party to enforce the contract.

Premarital Agreements - Impoverished Spouse

Even if a valid agreement has been voluntarily executed and it meets the test for reasonableness, fairness, and full disclosure, the agreement may be set aside if its result winds up leaving one spouse woefully impoverished to the extent that he becomes dependent on the state (i.e., welfare). It is irrelevant if abrogation of the exact terms of the agreement results.

Part Performance of Real Property Contract Without Writing

Even if an oral contract for the transfer of an interest in real property is not enforceable at the time it is made, subsequent acts by either party that show the existence of the contract may make it enforceable, even without a memorandum. Such acts include: (1) Payment of all or part of the purchase price; (2) Possession by the purchaser; or (3) Substantial improvement of the property by the purchaser. Most jurisdictions require at least two of the above three acts to establish sufficient part performance.

Nonfraudulent Misrepresentation in Contract

Even if nonfraudulent, a misrepresentation (innocent or negligent) can still render a contract voidable by the adversely affected party if: (1) The misrepresentation is material (i.e., information that would cause a reasonable person to agree or that the person making the misrepresentation knows would cause this particular person to agree); (2) The misrepresentation induced assent to the contract; and (3) The adversely affected party justifiably relied on the misrepresentation.

Remedying Venue and lack of personal jurisdiction

Even if the court lacks personal jurisdiction over the defendant, the court is not barred from transferring a case to a different venue. Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962).

Limitations to Specific Performance

Even if the remedy of damages is inadequate, specific performance will not be granted when the court cannot supervise enforcement. Thus, courts rarely grant specific enforcement of contracts for personal services, although they may restrain the breaching party from working for another when the contract contains a noncompete clause.

Parol Evidence Rule Exception - UCC Exceptions

Even if the terms of a written contract for the sale of goods appear to be unambiguous, a party may explain or supplement the terms by evidence of trade usage or course of dealings or performance. UCC § 2-202. If the express contract terms are inconsistent with the course of performance, course of dealing, or trade usage, priority is given as follows: (1)express terms prevail over all others, (2) course of performance prevails over course of dealing and trade usage, and (3) course of dealing prevails over trade usage. UCC § 1-303(e).

Nuisance Damages - Utility of Conduct

Even if the utility of the defendant's conduct outweighs the gravity of the harm, damages (but not injunctive relief) may be available if the harm is serious and the financial burden of compensating for the harm would not make the defendant's continuing conduct unfeasible. In other words, while it may be reasonable for the defendant to engage in the conduct, it is unreasonable for the defendant to do so without paying for the harm done.

Respondeat Superior - Negligence in hiring

Even if vicarious liability does not apply, the party hiring the independent contractor may be liable for his own negligence in selecting the independent contractor.

Rule Against Perpetuities - Trust Interests

Even though a beneficiary of a trust holds only an equitable interest in the trust property, such an interest may be subject to the Rule.

Protective Filing for Lease Under Article 9

Even though a lease of goods is arguably subject to Article 2A, the lessor may nevertheless take steps to comply with Article 9's filing rules. The lessor may wish to do so when there is doubt as to whether the transaction constitutes a true lease or a sale with a retained security interest. By making such a protective filing, the lessor is not prevented from asserting that the transaction constitutes a lease, but he will be accorded perfected status in the event that a court later determines that it is not. UCC § 9-505.

Res Ipsa Loquitur - Modern

Even under the traditional requirements, courts often generously interpret the "exclusive control" requirement.

Parol Evidence Rule Exception - Separate Deal

Even when there is full integration, evidence may be offered if it represents a distinct and separate contract.

Child Support Enforcement in Other Jurisdictions

Every jurisdiction has adopted the Uniform Interstate Family Support Act (UIFSA) to simplify collection of support payments when the obligor or child resides in a jurisdiction different from the one in which the original order was issued. Once an order is registered in another state, it is enforceable in the same manner and to the same extent as a child-support order issued by the original state. UIFSA §603(b). If the order is properly registered, the Full Faith and Credit Clause of the U.S. Constitution applies to it. UIFSA § 603(b). Only the issuing state may modify the original support order; the other state's responsibility is simply to enforce the order. If there is no personal jurisdiction over the obligor, then there is a two-state procedure that can be employed. Under this approach, an enforcement order can be obtained in the issuing state by filing an enforcement petition in the initiating state that will be forwarded to the issuing state's court. UIFSA § 203.

No-fault Divorce

Every jurisdiction recognizes a no-fault ground for divorce. The majority of the jurisdictions require a party to allege that the marriage is irretrievably broken and there is no prospect of reconciliation (e.g., irreconcilable differences). Despite the terminology, the fact that the discord stems from a curable condition will not prevent divorce on a no-fault ground. About half the states require that the couple be separated for a specific time (e.g., one year) prior to the filing of the divorce action. The fact that one spouse wishes to reconcile may lengthen the time period for obtaining a divorce, but it is not an absolute bar to a no-fault divorce. Most jurisdictions have abolished the traditional defenses to divorce. The only defense would be to deny the ground for the divorce. However, unless both parties agree, this is generally insufficient to prevent the divorce.

Covenant of Quiet Enjoyment

Every lease (both commercial and residential) contains an implied covenant of quiet enjoyment, which is breached only when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant. Off?premises actions of third parties will not suffice. The landlord is not liable for acts of other tenants, but he has a duty to take action against a tenant's nuisance-like behavior and to control the common areas. Any actions by the landlord that breach this covenant amount to an actual or constructive eviction of the tenant. Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts not intended to amount to a permanent expulsion do not amount to constructive eviction.

Limited Admissibility of Evidence

Evidence may be admissible for one purpose but not for another (e.g., for impeachment but not substantive purposes), or against one party but not against another. In these cases, if a party makes a timely request, the court must restrict the evidence to its proper scope and instruct the jury accordingly. Fed. R. Evid. 105.

Parol Evidence Rule Exception - Ambiguity and Interpretation

Evidence may be admitted for the purpose of interpreting or clarifying an ambiguity in the agreement. This can include evidence of trade usage or even local custom to show that a particular word or phrase had a particular meaning. Courts approach interpretation in two ways: (1) the plain-meaning rule or (2) context rule.

Negligence - Custom

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent.

Joint and Several Liability examples

Examples of when joint and several liability applies include, among other instances, when: (1) The tortious acts of two or more tortfeasors combine to produce an indivisible harm; (2) The harm results from the acts of one or more tortfeasors acting in concert; (3) Alternative liability applies; (4) Res ipsa loquitur is used against multiple defendants (such as in a surgical setting), and the plaintiff is unable to identify the tortfeasor whose acts were negligent; and (5) The employer and the employee are both held liable.

Voluntary dismissal by court order

Except as provided above, an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. Any voluntary dismissal by court order is without prejudice, unless the order states otherwise. Rule 41(a)(2).

Notice of Disposition of Collateral Requirements

Except in a consumer goods transaction, the contents of a notification of disposition are sufficient when the notification contains: i) A description of the debtor and the secured party; ii) A description of the collateral; iii) A statement as to the method of disposition; iv) A statement that the debtor is entitled to an accounting of the unpaid indebtedness and the charge, if any, for providing that accounting; and v) A statement of the time and place of a public disposition or the time after which a private disposition is to be made. UCC § 9-613.

Expectation Damages

Expectation (benefit-of-the-bargain) damages are intended to put the nonbreaching party in the same position as if the contract had been performed. Expectation damages must be calculated with reasonable certainty. If expectation damages are too speculative, the plaintiff may instead seek reliance damages. To calculate expectation damages, compare the value of performance without the breach (what was promised) with the value of the performance with the breach (what was received).

Express Actual Authority

Express actual authority can be created via: (1) Oral or written words; (2) Clear, direct, and definite language; or (3) Specific detailed terms and instructions. For express (actual) authority to exist, the principal's manifestation must cause the agent to believe that the agent is doing what the principal wants (subjective standard), and the agent's belief must be reasonable (objective standard).

Express Condition of Contract

Express conditions are expressed in the contract. Words in the contract such as "on the condition that" or "provided that" are typical examples of express conditions. Express conditions must be complied with fully unless excused; substantial performance will not suffice. Arbitration clauses are enforceable, except when a consumer might be waiving an important substantive right.

Procedural vs. substantive unconscionability

Factors rendering a contract unconscionable are often categorized as either procedural unconscionability or substantive unconscionability. Procedural unconscionability occurs when a party is induced to enter the contract without a meaningful choice due to deception, compulsion, or significantly unequal bargaining positions. Examples of procedural unconscionability may include boilerplate contract provisions that are inconspicuous, hidden, or difficult for a party to understand, or contracts of adhesion (a take-it-or-leave-it contract) when there is greatly unequal bargaining power between the parties. Substantive unconscionability occurs when the substance of the contract itself is unduly unfair. See, e.g., Frostifresh Corp. v. Reynoso, 274 N.Y.S.2d 757 (1966).

Legal Claim or Defense as Consideration

Failing to assert a claim or defense that proves to be invalid does not constitute consideration, unless the claim or defense is in fact doubtful due to uncertainty of facts or law, or if the party failing to assert the claim or defense believes in good faith that it may be fairly determined to be valid. Restatement (Second) of Contracts § 74.

Product Liability - Breach of Duty

Failure to exercise reasonable care in the inspection or sale of a product constitutes breach of that duty. The plaintiff must establish not only that the defect exists, but also that the defendant's negligent conduct (lack of reasonable care) led to the plaintiff's harm. In other words, had the defendant exercised reasonable care in the inspection or sale of the product, the defect would have been discovered, and the plaintiff would not have been harmed. The plaintiff also has the option of invoking res ipsa loquitur if the defect could not have occurred without the manufacturer's negligence. The individual defendant must have breached his duty to reasonably inspect or sell. Unlike in strict products liability, the negligence of others in the supply chain cannot be imputed. Rather, the plaintiff has the burden of proving fault on the part of any particular defendant.

False Imprisonment generally

False imprisonment results when a person acts: (1) Intending to confine or restrain another within boundaries fixed by the actor; (2) Those actions directly or indirectly result in such confinement; and (3) The other is conscious of the confinement or is harmed by it.

Fault Divorce generally

Fault grounds for divorce include adultery, cruelty, desertion, habitual drunkenness, bigamy, imprisonment, indignity, and mental disorder. Most jurisdictions retain some level of fault-based grounds, although some have removed it from the law since the adoption of no-fault grounds. The use of fault-based divorce grounds has decreased dramatically since the adoption of no-fault-based grounds in most jurisdictions, although fault is often considered when awarding maintenance.

Spousal maintenance - marital misconduct

Fault or marital misconduct may be taken into account in many states in determining spousal support. The weight that the marital misconduct is given in determining alimony is dependent on the jurisdiction, with some considering it as a factor and others giving it a preclusive effect. See Stevens v. Stevens, 484 N.Y.S.2d 708 (3d Dep't 1985) (marital fault may only be considered when the conduct of the recipient is egregious); 23 Pa. Cons. Stat. § 3701(b) (marital misconduct is one of 17 factors to be considered when determining alimony).

Federal Common Law in State Court

Federal common law may also apply in state court without running afoul of Erie. If state jurisdiction is concurrent with federal question jurisdiction (see § I.B.2., Concurrent Versus Exclusive Jurisdiction) and federal common law would have applied in federal court, then it will also apply in state court. See Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).

Destruction of Diversity Jurisdiction generally

Federal jurisdiction is prohibited if a party uses improper or collusive devices to invoke such jurisdiction. § 1359.

Well-Pleaded Complaint Rule

Federal question jurisdiction exists only when the federal law issue is presented in the plaintiff's complaint. This is the "well-pleaded complaint" rule. See Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). Answers and counterclaims are not considered in determining the existence of federal question jurisdiction.The well-pleaded complaint rule applies both to the original jurisdiction of the federal court and to removal jurisdiction.

Interpleader and venue

Federal venue requirements must also be met in interpleader actions under Rule22.

Fee Simple Absolute

Fee simple absolute is the most common form of property ownership and the broadest ownership interest recognized by law. It is absolute ownership of potentially infinite duration, is freely alienable (i.e., easily bought or sold), and has no accompanying future interest. Although common law required words of limitation (e.g., "and heirs"), conveyances that are ambiguous are now considered fee simple by default (e.g., "to B"). The fee simple absolute is a present estate that does not terminate unless the owner dies intestate without heirs, in which case the property escheats to the state.

Negligence - Fetuses

Fetuses are owed a duty of care if they are viable at the time that the injury occurred.

Common-law Marriage - Capacity

For a couple to enter into a common-law marriage, they both must have the legal and mental capacity to do so. To satisfy the legal capacity requirement, they must be old enough and not too closely related. The determination of mental capacity is the same used to determine eligibility to obtain a license in a ceremonial marriage (e.g., they must understand the nature of the act).

Writing Requirement for Covenants running with the land

For a covenant to be enforceable, it must first comply with the Statute of Frauds. The only exception is an implied reciprocal servitude, which does not require a writing.

Notice of Mortgage Foreclosure

For a mortgagee to foreclose on a mortgage, she must give the mortgagor prior notice. In addition, if foreclosure is conducted by a judicially supervised sale, the mortgagee must give notice to the holders of any junior interest in the property. The mortgagee may join others who have an interest in the property (e.g., the holder of a senior mortgage) or who are liable on the debt (e.g., a guarantor) as proper, but not necessary, parties.

Attachment and Security Agreement

For a security interest to attach to collateral, there must be a security agreement. In addition, the secured party must satisfy the Article 9 Statute of Frauds. This means that the security agreement must be established by the debtor's authentication of the agreement, or the secured party's possession or control of the collateral. UCC §§ 9-201(a); 9-203(b)(3), incl. cmt 3.

Equitable Servitude Requirements

For a servitude to be enforced at equity, it must be in writing and meet the following requirements: (1) There must be intent for the restriction to be enforceable by and against successors; (2) The servitude must touch and concern the land; and (3) The person against whom the servitude is to be enforced must have notice (whether actual, record, or inquiry notice) of the servitude. Unlike with a real covenant, with an equitable servitude, a party seeking to enforce it need not show privity, but the party is limited to equitable remedies.

Principal's Manifestations of Assent or Intent

For actual authority to exist, a principal must make a manifestation that causes the agent reasonably to believe that the agent is authorized. Silence or the failure to dissent by a principal to the actions or words of an agent when a reasonable person would do so can constitute a manifestation of assent for an agent to act on the principal's behalf. A principal must give the agent clear notice if the principal disagrees with the agent's actions. A principal's manifestation must reach the agent to create actual authority. The principal might communicate with the agent directly, or the manifestation might reach the agent by some other means, such as through another agent of the principal.

Central filing financing statements

For all collateral not related to real property, the financing statement is filed with the secretary of state ("central filing") of the state of the debtor's location. UCC § 9-501(a)(2).

Adoption - Termination of a natural parent's rights

For an adoption to be valid, the parental rights of the biological parents must be terminated. For those rights to be terminated, one of the following circumstances must occur: (1) consent of unwed fathers by failure to register; (2) consent of the prospective adoptee; (3) abandonment; (4) incapacity; (5) abuse or neglect of the child or a sibling.

Class Action Exception to Diversity Jurisdiction

For certain class actions in which the amount at issue totals more than $5,000,000, diversity will be met if any member of the plaintiff class is diverse with any defendant. § 1332(d)(2)(A).

Sufficiently Identical Parties and res judicata

For claim preclusion to apply, the claimant and the defendant must be the same (and in the same roles) in both the original action and the subsequently filed action. Note that claim preclusion is limited to the parties (or their privies). Thus, a similar action by a different party would not be precluded.

"Local filing" financing statements

For collateral that is related to real property, the financing statement is generally filed in the office for recording a mortgage on the related real property ("local filing"). UCC § 9-501(a)(1).

Damages for Breaching Buyer in Sale of Goods

For contracts for the sale of goods, a defaulting buyer is entitled to a refund of any payments made on the contract, less either (i) the amount to which the seller is entitled by virtue of an enforceable liquidated-damages provision, or (ii) a penalty of "20 percent of the value of the total performance for which the buyer is obligated under the contract, or $500, whichever is smaller." This amount is subject to an offset for any contract damages that the seller can establish other than those arising under a liquidated damages provision. UCC § 2-718(2),(3).

Third Person Knowledge of Agency Relationship

For express actual authority to exist, the agent must believe that the agent is doing what the principal wants (subjective standard), and the agent's belief must be reasonable (objective standard). Awareness of the agent's authority by a third party does not determine the nature or extent of the authority.

Fraudulent Concealment of Principal

For fraudulent concealment to apply, either the principal or the agent must have notice that the third party would not have dealt with the principal. Mere suspicions or doubts about the third party's willingness to deal with a principal are insufficient to give the principal or agent notice. When the agent does not make an affirmative misrepresentation to the third party, the third party may be able to avoid the contract by establishing a unilateral mistake.

In Personam Jurisdiction Over Resident Corporations

For in personam jurisdiction purposes, a corporation is a resident corporation only if it is incorporated in the forum state. Any action may be brought against a corporation that is incorporated in the forum state. If the corporation is not incorporated in the state, then for the purposes of in personam jurisdiction it will constitute a foreign corporation.

Exceptions to Tenant Being Considered Holdover Under New Lease

For purposes of binding a tenant to a new lease, a tenant is not considered to be a holdover tenant if the tenant leaves a few articles of personal property behind, the tenant's occupation extends a few hours beyond the termination time, or circumstances out of the tenant's control (e.g., severe illness) prevent the tenant from leaving. In addition, a landlord cannot make this election with regard to a seasonal lease.

Merchant in Contract Option

For purposes of this rule, a merchant includes not only a person who regularly deals in the type of goods involved in the transaction or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction, but also any businessperson when the transaction is of a commercial nature. UCC § 2-104(1) cmt. 2.

Federal Statutory Interpleader and subject matter jurisdiction

For statutory interpleader, diversity jurisdiction is met if any two adverse claimants are citizens of different states. With regard to the amount in controversy, in a statutory interpleader action, the property at issue must merely exceed $500 in value, not meet the $75,000 threshold required for regular diversity matters.

Federal Statutory Interpleader Deposit

For statutory interpleader, unlike for federal rule interpleader, the stakeholder is required to either deposit with the court the property at issue or post a bond in an appropriate amount.

Horizontal Privity - Covenants Running with the Land

For the burden to run, the original parties to the covenant must have privity of estate at the time the agreement creating the covenant is entered into. This means that there must be some shared property interest apart from the covenant itself. (Note: Horizontal privity is not required for the benefit to run.)

Elements of Impracticability as Contract Defense

For the defense of impracticability to be available, the following conditions must also be met: (1) An unforeseeable event has occurred; (2) Nonoccurrence of the event was a basic assumption on which the contract was made; and (3) The party seeking discharge is not at fault. When performance becomes impracticable for a seller of goods, the seller must notify the buyer. Restatement (Second) of Contracts § 265.

Legal Detriment in Bargained-For Exchange

For the legal detriment to constitute sufficient consideration, it must be bargained for in exchange for the promise. The promise must induce the detriment, and the detriment must induce the promise ("mutuality of consideration"). Consideration can take the form of: (1) A return promise to do something; (2) A return promise to refrain from doing something legally permitted; (3) The actual performance of some act; or (4) Refraining from doing some act.

Attachment - Debtor's Rights in Collateral

For the security interest to attach to the collateral, the debtor generally must have rights in the collateral. The basic rule is that a security interest attaches only to the rights that the debtor has. A debtor's limited rights in collateral are sufficient for a security interest to attach. In a few instances, the debtor may have the power to transfer rights in the collateral to a secured party even though the debtor does not possess such rights. For example, a person with voidable title to goods may have the power to create an enforceable security interest. UCC §§ 9-203(b)(2), incl. cmt. 6; 2-403(1).

Venue - Residence

For venue purposes, a natural person, including an alien lawfully admitted for permanent residence in the United States, is deemed to reside in the judicial district where that person is domiciled. § 1391(c)(1). A defendant that is an entity with the capacity to sue and be sued, regardless of whether incorporated, is deemed to reside in any judicial district in which the entity is subject to personal jurisdiction with respect to the civil action in question. In a state that contains multiple judicial districts and in which a defendant corporation is subject to personal jurisdiction at the time the action is commenced, the corporation "shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State." If there is no such district, the corporation is deemed to reside in the district with which it has the most significant contacts. § 1391(c)(2). If the entity is a plaintiff, then it is deemed to reside only in the judicial district in which it maintains its principal place of business. § 1391(c)(2). A defendant who is not a resident of the United States may be sued in any judicial district, but the joinder of such a defendant is disregarded when determining proper venue with respect to other defendants. § 1391(c)(3).

Divorce - Condonation

Forgiveness of a spouse is a defense to a fault-based divorce. There must be knowledge of the misconduct and forgiveness of the misconduct, and the party must resume marital relations with the guilty party. It is typically based on a promise not to engage in the misconduct again. At common law, once an act was forgiven, it could not become future grounds for divorce.

Fraud in the factum

Fraud in the factum (or fraud in the execution) occurs when the fraudulent misrepresentation prevents a party from knowing the character or essential terms of the transaction. In such a case, no contract is formed, and the apparent contract is void (i.e., not enforceable against either party), unless reasonable diligence would have revealed the true terms of the contract.

Fraud in the inducement

Fraud in the inducement occurs when a fraudulent misrepresentation is used to induce another to enter into a contract. Such a contract is voidable by the adversely affected party if she justifiably relied on the misrepresentation in entering into the agreement.

Fraudulent Misrepresentation in Contract

Fraudulent misrepresentation requires proof of the following: (1) The misrepresentation is fraudulent: (a) A false assertion of fact made knowingly, or recklessly without knowledge of its truth; and (b) With intent to mislead the other party; (2) The misrepresentation induced assent to the contract; and (3) The adversely affected party justifiably relied on the misrepresentation.

Emblements generally

Fructus industriales and fructus naturales are two types of crops that, with some exceptions, are conveyed along with the land. Fructus industriales are produced through cultivation and are considered personalty. Fructus naturales are perennial; they do not require planting because they are produced by nature alone. Title to fructus naturales passes automatically with the land because this crop is considered real property.

Employer principal

Generally an agency relationship with more control will be an employer agency relationship. Courts look at the following factors: (1) The principal exercises significant control over the details of the worker's day-to-day activities; (2) The principal supplies the tools at the place of employment; (3) The principal pays the worker on a structured pay period; (4) The worker's skill level is specialized; and (5) The principal directs the work to completion.

Negligence Per Se - Defendant's Compliance

Generally speaking, compliance with a statute, a regulation, or an ordinance does not prove the absence of negligence. However, sometimes, if the defendant's conduct complies with certain types of federal regulatory statutes, such as those establishing comprehensive regulatory schemes, compliance with the federal requirements may preempt common-law tort actions.

Time of the Essence in Real Estate Contracts

Generally, a court will assume that time is not of the essence in a real-estate contract, unless the contract specifically states that time is of the essence, circumstances indicate that this was the intention of the parties, or one party gives the other party notice that time is of the essence. Such notice must be given at a reasonable time before the date designated for closing. If time is not of the essence, strict adherence to the closing date set in the contract will not be required in equity. Thus, a failure to perform will generally not be grounds for rescission of the contract. A party can sue for specific performance, though, as long as the party was ready to perform within a reasonable time from the date set for performance. Regardless of whether time is of the essence in a real-estate contract, though, the party that fails to render performance on the date set for closing in the contract will be in breach and liable for damages in an action at law for incidental losses such as taxes, interest, etc.

Mortgage and "marshalling of assets"

Generally, a creditor whose debt is secured by a mortgage on multiple properties can elect which property to subject to a foreclosure sale. However, when a senior mortgage is foreclosed and the mortgage covers multiple properties, the holder of a junior mortgage on some but not all of these properties can petition the court to apply the equitable doctrine of "marshalling of assets." Under this doctrine, the holder of the senior mortgage may be compelled to first foreclose on the properties for which only that holder possesses a mortgage in order to protect the security interest of the holder of the junior mortgage, so long as it does not prejudice the interest of the holder of the senior mortgage or a third party. If there are multiple junior interests, then property subject to the more recently created interests is subject to foreclosure prior to property subject to the more remotely created interests (i.e., the "inverse order rule").

Landlord's Duty in Use of the Security Deposit

Generally, a landlord is required to promptly return a security deposit at the end of the lease or to notify the tenant of the amount retained by the landlord and the reasons for doing so. Monetary penalties may be imposed on the landlord for failing to comply with the statutory requirements of security deposits. The landlord may retain some or all of a security deposit when a tenant breaches the lease, usually by failing to pay the rent. The landlord may also retain some or all of a security deposit for damage to the premises that are in excess of normal wear and tear.

Private Nuisance - Duration

Generally, a nuisance is continuous. A trespass may be a one-time event, episodic, or continuous.

Expansion of use nonconforming with zoning

Generally, a property owner whose nonconforming use has been grandfathered is not entitled to subsequently increase the nonconforming use, such as by enlarging a building that houses a nonconforming use or acquiring and developing adjacent property in accord with the nonconforming use. However, the owner may be permitted to increase the frequency of the nonconforming use to upgrade the means to accomplish the nonconforming use. Trip Assocs. v. Mayor & City Council, A.2d 449 (Md. 2006) (an increase in the number of nights that adult entertainment was presented at a club was allowed); Union Quarries, Inc. v. Bd. of Cty. Comm'rs, 478 P.2d 181 (Kan. 1970) (use of modern equipment in the operation of a rock quarry was permitted). Similarly, repair of an existing structure is generally permitted. Granger v. Bd. of Adjustment, 44 N.W.2d 399 (Iowa 1950).

Future Interest - Remainder

Generally, a remainder is a future interest created in a grantee that is capable of becoming an estate that is presently possessory upon the natural expiration of a prior possessory estate (e.g., a life estate, estate for years) that is created in the same conveyance in which the remainder is created. However, by definition, a remainder interest cannot follow a defeasible fee interest. A remainder can be either vested or contingent.

Security Interest in fixtures vs. real property interest

Generally, a security interest in fixtures is subordinate to a conflicting interest of an encumbrancer or owner of the related real property other than the debtor. However, a security interest in fixtures has priority over an interest in the real property with which the fixtures are associated if the security interest in fixtures is perfected by a fixture filing before the real property interest is recorded. A fixture filing is the filing of a financing statement covering goods that are or are to become fixtures. The financing statement must be filed in the office designated for the filing or recording of a mortgage on the related real property. UCC §§ 9-102(40),9-334(c), (e)(1), 9-501.

Attachment of Security Interest

Generally, a security interest that is enforceable against the debtor with respect to the collateral is said to have "attached" to the collateral. For the security interest to be enforceable against the debtor, three conditions must coexist: i) Value has been given by the secured party; ii) The debtor has rights in the collateral; and iii) The debtor has authenticated a security agreement that describes the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.

Statute of Limitation on Implied Warranty for New Homes

Generally, a suit for breach of this warranty must be brought within a reasonable time. When the warranty is statutory, a fixed time is generally specified (generally from one year to 10years), may vary with the type of defect (e.g., structural defects, foundation problems), and typically begins to run with the completion of the residence or the initial buyer's possession of it rather than with the buyer's discovery of the defect.

Undisclosed Principal

Generally, a third party is liable to an undisclosed principal on a contract made with an agent on behalf of the principal unless: (1) The principal or undisclosed principals are excluded by the form or terms of the contract; or (2) The principal's existence is fraudulently concealed, i.e., the agent falsely represents to the third party that the agent does not act on behalf of the principal. Generally, an undisclosed principal is liable to a third party if: (1) The third party is induced to make a detrimental change in position by an agent without actual authority; (2) The principal knew of the agent's conduct and that it might induce others to change positions; and (3) The principal did not take reasonable steps to notify the third party of the facts. Restatement (Third) of Agency § 2.06(1).

Standing of Intended Third-Party Beneficiary

Generally, an intended beneficiary of a "gift promise" (i.e., a donee beneficiary) may sue only the promisor because the promisee is not under an obligation to the intended beneficiary. However, if the promisee tells the intended beneficiary about the contract and should reasonably foresee reliance, and the beneficiary does justifiablyrely to his detriment, then the intended beneficiary may also sue the promisee. An intended beneficiary to whom the promisee owed money (i.e., a creditor beneficiary) or an intended beneficiary to whom the promisee is under a legal obligation, may sue either the promisor to enforce his contractual promise, or the promisee on the underlying obligation, but only one recovery is allowed.

Conveyance of Crops

Generally, both fructus naturales and fructus industriales are conveyed along with the land because the owner of the land is presumed to be the owner of both types of crops. Because this presumption is based on the intent of the parties, a contrary intent may be shown to rebut the presumption.

Child's liability for torts and criminal acts

Generally, children are judged by a more moderate standard than adults when determining the liability for tortious behavior. Criminal acts, as well, generally are limited to adjudication in juvenile courts under juvenile laws. The purpose of this difference is to provide the child with supervision and rehabilitation. Usually, the decision regarding the extent of punishment is dependent on the age of the child; the younger the child, the more likely the court will show leniency.

Attachment and Consignments

Generally, if the consignor retains title to the consigned goods, the consignee does not have rights in the consigned goods. Consequently, a security interest in the consignee's inventory, for example, would not extend to the consigned goods. However, when the consignment is covered by Article 9, the consignee is treated as having the consignor's rights in the consigned goods. See § I.E.3. Consignments, supra. UCC § 9-319(a).

Acceptance of Contract Offer by Silence

Generally, silence does not operate as an acceptance of an offer, even if the offer states that silence qualifies as acceptance (or, more likely, implied acceptance), unless: (1) The offeree has reason to believe that the offer could be accepted by silence, and he was silent with the intent to accept the offer by silence; or (2) Because of previous dealings or patterns of behavior, it is reasonable to believe that the offeree must notify the offeror if the offeree intends not to accept.

Proceeds priority

Generally, the basic rules (e.g., first-to-file-or-perfect) govern priority if there are conflicting security interests and at least one of those interests is claimed as proceeds. UCC § 9-322(a), incl. cmt. 6. Moreover, the filing or perfection date for the original collateral is treated as the filing or perfection date for the proceeds. UCC § 9-322(b)(1). This rule controls, even when the security interest in inventory is a PMSI, because the super-priority of a PMSI in inventory does not extend to proceeds that are not cash.

Visitation and Parenting Time

Generally, the noncustodial parent is allowed reasonable visitation (or "parenting time") with a minor child. Because parents have a constitutional right to have contact with their children, the denial of visitation is unusual and typically only an issue when it would seriously endanger a child's physical, mental, or emotional health. The court will, however, place restrictions on the exercise of visitation, such as supervised parenting time or a denial of overnight visits. The parents, by agreement, usually determine the time, place, and circumstances of the visitation. If the parties cannot agree on the circumstances, then the court will determine the particular circumstances surrounding the parenting time.

Covered by Implied Warranty for New Homes

Generally, the warranty is implied against commercial builders, developers, and contractors of residences. A majority of jurisdictions permit not only the initial homeowner/purchaser but also subsequent purchasers who do not contract directly with the commercial developer or builder to recover damages. However, a subsequent purchaser of the residence may be subject to defenses that the commercial developer or builder can raise against the initial purchaser.

Respondeat Superior - Commuting

Generally, travel between work and home by an employee is not within the scope of employment. An exception exists when the employer provides the employee with a vehicle and asserts control over how the employee uses the vehicle. Restatement (Third) of Agency § 7.07, cmt. e (2006).

Recording - Constructive Notice

Grantees are held to have constructive notice of all prior conveyances that were properly recorded.

Recording and Donees, heirs, and devisees

Grantees who acquire title of property by gift, intestacy, or devise are not protected by the recording act against prior claims, even those who fail to record their claims to the same property.

Shelter Rule

Grantors who are protected by the recording act protect (or "shelter") their grantees who would otherwise be unprotected. The exception to the shelter rule is that a purchaser who is not a bona fide purchaser cannot convey to a bona fide purchaser and then buy back the property to obtain the status of a bona fide purchaser.

Groundwater

Groundwater is natural water that flows or lies under the surface and either percolates to the surface naturally or is tapped by a well. Most western states follow the prior-appropriation doctrine, though a few states apply the correlative?rights doctrine. Under correlative rights, each landowner above a common groundwater source has an equal right to use a reasonable amount of water for beneficial use. Most eastern states follow the reasonable-use doctrine, though a few apply the common-law doctrine of absolute ownership. Under absolute ownership, the surface owner has total and complete discretion over water extraction and use.

Collateral Issues and Law of the Situs

If an action regarding real property rights involves a collateral issue, then the conflict-of-laws rule of the situs state may apply the law of the state with the most significant interest when determining the collateral issue. Restatement (Second) of Conflict of Laws § 223, cmt. i.

Emblements Exceptions

Harvested crops, or crops that have been severed from the land, are not conveyed with the land. Thus, the prior owner can remove the crops and has the right to reenter the land. Some courts also treat ripened fructus industriales as being constructively severed from the land because they no longer draw sustenance from the soil. Thus, in some jurisdictions, these crops are not conveyed with the land. When crops are planted by a tenant, if the tenant's lease is for an uncertain duration and the lease is terminated through no fault of the tenant, then the tenant has a right to reenter the land to remove, harvest, and cultivate crops planted prior to the termination of his tenancy. This "doctrine of emblements" applies unless there is a provision to the contrary in the lease, or the one who planted the crops is a trespasser. However, adverse possessors who plant under a claim of right are entitled to the same rights as tenants.

Child Custody generally

Having custody (i.e., control) of a child can mean having legal custody or physical custody, or both. Either or both of these types of custody can be shared under a joint custody arrangement.

Private Nuisance - Light

Historically, courts have refused to find the obstruction of sunlight as creating a private nuisance.

Financing Statement and trade names

Identification of the debtor solely by the debtor's trade name is insufficient. By contrast, failure to include the debtor's trade name does not affect the effectiveness of the financing statement when the debtor's name is correctly provided. UCC § 9-503(b), (c).

Jury Demand and Removal

If a case is removed from state court, a party who has made a jury trial demand in accord with state law need not renew the demand. If state law does not require a party to make a jury trial demand, a party need not make one after removal unless the court orders the parties to do so. A party may request that the court make such an order and the court must comply. If all necessary pleadings have been filed prior to removal, a party entitled to a jury trial under Rule 38 may make a jury trial demand within 14 days after filing a notice of removal or being served with such a notice filed by another party. Rule 81(c)(3).

"Clean" Certificate of Title

If a certificate of title issued by one state fails to indicate that goods (e.g., an automobile) are or may be subject to a security interest perfected under the laws of a second state (i.e., a "clean" certificate of title), then the buyer of the goods can take free of the security interest, provided the buyer receives delivery of the goods after issuance of the certificate without knowledge of the prior security interest. Similarly, the holder of a conflicting security interest has priority over such an out-of-state security interest, provided the holder's interest attaches and is perfected after the issuance of the certificate and the holder does not have knowledge of the out-of-state security interest. UCC § 9-337.

Motion for a More Definite Statement

If a claim for relief is so vague or ambiguous that a party cannot reasonably draft a responsive pleading, then the responding party may move for a more definite statement pursuant to Rule 12(e). The motion must specify the defects in the pleading, as well as the details sought by the party making the motion. Courts are generally reluctant to grant a motion for a more definite statement, because discovery is available to get more information about an issue. The standard for granting such a motion is whether the pleading provides enough information from which the responding party can draft a responsive pleading and commence discovery. A motion for a more definite statement may be appropriate when the pleader fails to allege facts required to be specifically pleaded, such as allegations of fraud or mistake under Rule 9(b).

Class Action second opt-out opportunity

If a class action was certified under Rule 23(b)(3), the court may refuse to approve of the settlement unless class members are given a second opportunity to "opt out" of the litigation and proceed on their own. Rule 23(e)(4). A class member who fails to opt out is bound by the settlement.

Destruction of Identified Goods in Contract

If a contract calls for the delivery of goods identified at the time the contract is made, and the goods are destroyed by no fault of either party before the risk of loss passes to the buyer, then the contract is avoided. Both parties are discharged; neither party must perform, and neither party has breached. If the goods are damaged but not destroyed, then the contract is avoided, unless the buyer chooses to take the goods at a reduced price without any other claim against the seller. (Note: If the risk of loss has passed to the buyer, then the contract is not avoided, and the seller may demand performance by the buyer).

Restitution for unenforceability

If a contract is unenforceable due to the Statute of Frauds or is voidable due to lack of capacity, mistake, misrepresentation, duress, or undue influence, then a party is entitled to restitution of any benefit conferred on the other party by way of part performance or reliance. Similarly, a party whose duty is discharged or does not arise as a result of impracticability of performance, frustration of purpose, or the nonoccurrence of a condition is entitled to restitution of any benefit conferred on the other party by way of part performance or reliance. Restatement (Second) of Contracts §§ 375-377.

Vested Remainder Subject to Open

If a conveyance grants a remainder to a class of grantees and at least one of the grantees receives a vested remainder at the time of the conveyance, then that vested remainder is subject to open (i.e., the property interest is uncertain because other grantees may become vested and able to share in the grant). Once a class closes, any person who might otherwise have become a class member (e.g., later-born siblings) cannot claim an interest in the property as a class member. Although those born after the class closes are generally not part of the class, those already in gestation upon closing are included in the class. Absent a closing date, the rule of convenience closes the class when any member of the class becomes entitled to immediate possession of the property.

When Courts can decline child custody jurisdiction

If a court has either initial or exclusive-continuing jurisdiction, the court may decline to exercise such jurisdiction if it finds the forum to be inconvenient after considering the following factors: (1) Whether domestic violence has occurred and is likely to continue in the future, and which state could best protect the parties and the child; (2) The length of time the child has resided outside of the jurisdiction; (3) The distance between the competing jurisdictions; (4) The parties' relative financial circumstances; (5) Any agreement of the parties regarding which state should assume jurisdiction; (6) The nature and location of the evidence required to resolve the pending litigation, including the child's testimony; (7) The ability of each state's court to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) The familiarity of each state's court with the facts and issues in the pending litigation. A court may also decline to exercise its jurisdiction if a party has "engaged in unjustifiable conduct," such as wrongfully removing a child from another state.

Perfected by Movement of the Debtor

If a debtor moves to another state, a perfected security interest remains perfected for four months after the debtor's change in location, unless perfection would have ceased earlier under the law of the debtor's former state. UCC § 9-316(a), cmt. 2. This four-month grace period also applies to collateral the debtor acquires after the debtor moves, i.e., the filer has perfection for four months in collateral acquired post-move. UCC § 9-316(h).

Counterclaims

If a defendant has a claim against the plaintiff, then the defendant may state it as a counterclaim in the answer to the complaint. Under certain circumstances, a counterclaim will be compulsory (see § VI.D.2. Counterclaims, infra) under Rule 13 and must be pleaded or it will be precluded in any future litigation.

Joinder and In personam jurisdiction

If a defendant is joined pursuant to Rule 20, then the court must have in personam jurisdiction over the defendant in order for joinder to be proper.

In Personam Jurisdiction - Voluntary Presence

If a defendant is voluntarily present in the forum state and is served with process while there, then the court has personal jurisdiction over the defendant. Burnham v. Superior Court of California, 495 U.S. 604 (1990). However, most courts today have two exceptions to this rule. If a plaintiff fraudulently brings a defendant into the state for the purpose of serving process on him, then the service will most likely be invalid. A defendant is also immune if he is merely passing through the state to attend other judiciary proceedings.

Diversity Jurisdiction and res judicata

If a federal court with diversity jurisdiction over an action issues a judgment, then a state court must give such judgment the same claim-preclusion effect that the judgment would have been given by the courts of the state where the federal court was located. Semtek, supra.

Full Faith and Credit - State to Federal in Diversity

If a federal court with diversity jurisdiction over an action issues a judgment, then a state court must give such judgment the same, but no greater, claim preclusion (res judicata) effect that the judgment would have been given by the courts of the state where the federal court was located. Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001).

Rule Against Perpetuities - Effect of Violation

If a future interest fails to satisfy the Rule, then only the offending interest fails. In the rare case when the voiding of the future interest undermines the grantor's intent, the entire transfer is voided. If the interest that fails is the last distribution of the property provided in the transfer, the property does not revert to the grantor or the grantor's estate. Instead, the prior interest is upgraded to a fee simple absolute.

Wrongful Death and Survival Actions

If a jurisdiction recognizes both wrongful-death actions and survival actions, there is no double recovery.

Misunderstanding of Contract by One Party

If a material term in the offer and acceptance is ambiguous, and one party knows or should know that the other party has a different understanding of the meaning of the ambiguous term, then there will be a contract formed based on the meaning of the term as understood by the unknowing party.

Tenant Contractual Duty to Repair

If a nonresidential lease specifies that the tenant must "repair and maintain" the property, then the tenant is generally liable for all damage to the property, unless the landlord caused the damage. If the damage is significant (e.g., structural damage due to a fire) and such damage was not caused by the tenant, then the modern trend is to narrowly read the tenant's duty to repair and to find that it does not cover such damage. A residential lease provision that places the burden of repair on the tenant is generally void, but the tenant may be required to notify the landlord of the need for such repairs.

Failure to comply with a court order to compel

If a party fails to obey a court order regarding discovery, then the court may impose any of the following sanctions pursuant to Rule 37(b)(2): i) Directing that the matters addressed in the order or other facts be taken as established for the purposes of the action; ii) Prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; iii) Striking pleadings in whole or in part; iv) Staying further proceedings until the order is obeyed; v) Dismissing the action in whole or in part; vi) Rendering a default judgment against the disobedient party; and vii) Treating as contempt of court the failure to obey any order, except an order to submit to a physical or mental examination. Note that the mere failure to respond to discovery or disclosure obligations is not subject to sanctions under Rule 37; there must be a violation of a court order. The list of sanctions in Rule 37(b)(2) is not exhaustive. The court may order any sanction that is "just." Instead of, or in addition to, such sanctions, the court may also require the disobedient party, his attorney, or both to pay the movant's reasonable expenses, including attorney's fees incurred as a result of the failure to comply, except when the failure was substantially justified or imposition of fees would be unjust. Rule 37(b)(2)(C).

Constructive Adverse Possession

If a person enters property under color of title (a facially valid will or deed) and actually possesses only a portion of the property, then constructive adverse possession can give title to the whole. The amount possessed must be a reasonable portion of the whole.

Recovery of Restitutionary Damages by Breaching Party

If a plaintiff has not substantially performed and is in breach of the contract, the plaintiff is not permitted to recover under the contract. However, if the defendant has benefited from the plaintiff's performance, the plaintiff can generally recover in restitution for the benefit conferred on the defendant less the defendant's damages for the breach. In general, the breaching party's recovery is limited to a ratable portion of the contract price. Restatement (Second) of Contracts § 374(1).

Principal's Duty to Not Interfere

If a principal has agreed to furnish an agent with an opportunity for work, then a principal has a duty not to interfere with the agent's completion of that work.

Recording - Inquiry Notice

If a reasonable investigation would have disclosed the existence of prior claims, then the grantee is considered to possess inquiry notice, and she cannot prevail against those prior claims. The purchaser is charged with whatever knowledge a reasonable inspection of the property would have disclosed. In most states, taking a quitclaim deed does not in itself create inquiry notice of prior claims.

Defense against covenants and easements

If a restriction (i.e., real covenant or equitable easement) on a property no longer makes sense to enforce due to drastic changes in the surrounding area since the restriction was first contemplated, the restriction will not be enforced. A good indication that the neighborhood has changed is a change in zoning to permit what the covenant would deny.

Remedies Against Secured Party - Actual Damages

If a secured party fails to comply with Article 9, then the debtor or other secured party may seek damages for any loss caused by the secured party's failure. This loss may include losses resulting from the debtor's inability to obtain alternative financing or from the increased cost of obtaining such financing. UCC § 9-625(b), incl. cmt. 3. The debtor may seek consequential damages, but she is subject to the duty to mitigate damages.

Remedies Against Secured Party - Conversion

If a secured party improperly repossesses collateral, then the debtor may be able to pursue a conversion action under tort law, rather than under the UCC. UCC § 9-626, cmt. 2.

Limitation on deficiency - commercial transactions

If a secured party's collection, enforcement, disposition, or acceptance is not in accord with Article 9 and the transaction is a commercial—not a consumer—transaction, then there is a rebuttable presumption that the secured party is not entitled to collect a deficiency. The secured party can rebut this presumption in whole or in part by showing that the deficiency would have existed even had the secured party complied with Article 9. The debtor or secondary obligor may not seek damages if a deficiency is merely reduced or eliminated as a consequence of the secured party's failure to comply with Article 9. UCC §§ 9-625(d); 9-626(a)(3).

Effect of a lapse of perfection

If a security interest is not perfected in the second state before the expiration of the applicable temporary perfection period, then the security interest generally ceases to be perfected prospectively (i.e., upon the expiration of the temporary perfection period). With respect to a purchaser for value, such a security interest is deemed never to have been perfected. UCC § 9-316(b).

Survivorship Contingency in a Remainder

If a survivorship contingency is stated in a conveyance, then the majority view is that the contingency applies at the termination of the interest that precedes distribution of the remainder. A minority approach interprets a survivorship contingency to require surviving only the testator and not the life tenant.

Rule Against Perpetuities and class transfers

If a transfer to a class is conditioned on the class members surviving to an age beyond 21 and the class is open, then the transfer to the class violates the Rule.

Termination of Easement by Bona Fide Purchaser

If a written easement is granted but not recorded against the servient estate, then the easement is not enforceable against a bona fide purchaser (i.e., a purchaser with no notice of the easement). The easement is not actually terminated, but rather it becomes unenforceable.

Revocability of Contract Assignment

If an assignment is for consideration, it is irrevocable. If no consideration supports the assignment (a gratuitous assignment), then it will generally be revocable, unless the obligor has already performed or promissory estoppel applies. In addition, if the contract right that is being assigned is evidenced by a document that symbolizes the right (e.g., a bankbook, an insurance policy, or a stock certificate), then delivery of the document makes the assignment irrevocable. Also, the delivery of written assignment signed by the assignor to the assignee makes the assignment irrevocable. A gratuitous assignment that is revocable will be automatically revoked upon the death, incapacity, or bankruptcy of the assignor. Restatement (Second) of Contracts § 332.

Termination of Easement by Prescription

If an easement holder fails to protect his easement against a trespasser for the statutory period, then his easement right may be terminated by prescription.

Mental Illness and Capacity to contract

If an individual is adjudicated mentally incompetent, a purported contract made by the individual is void. On the other hand, if there has been no adjudication, a contract is voidable and may be disaffirmed if the individual is unable to: (1) Understand the nature and consequences of the transaction; or (2) Act in a reasonable manner with regard to the transaction, and the other party has reason to know of this fact. If a contract is made during a lucid period, the contract is fully enforceable, unless the person has been adjudicated incompetent. A mentally incompetent person may be liable for the reasonable value of necessities furnished by another party. Restatement (Second) of Contracts § 15.

Guardianship and contracts

If an individual's property is under guardianship by reason of an adjudication (such as for mental illness or defect, habitual intoxication, narcotics addiction), that individual has no capacity to contract, and a purported contract made by the individual is void. A person under guardianship may be liable for the reasonable value of necessities furnished by another party. Restatement (Second) of Contracts § 13.

Contracting Out Of Law of the Situs

If an instrument that conveys an interest in land or a will that devises an interest in land designates the application of a specific jurisdiction's laws, then those laws generally apply. Restatement (Second) of Conflict of Laws §§ 224, 240. If parties to a contract for the transfer of an interest in land designate applicable law, that law will apply with regard to the validity of the contract as well as the rights and duties created by the contract. Otherwise, if a state has a more significant relationship to the transaction and the parties than the situs state, that other state's laws should be applied. This modified rule also applies to covenants of title, real covenants that directly affect the transferred land, or an agreement to assume a mortgage. Restatement (Second) of Conflict of Laws §§ 189, 190.

Rule Against Perpetuities - unborn spouse

If an interest following a widow's life estate cannot vest until the widow dies, then it violates the Rule.

Remand for lack of Subject matter jurisdiction

If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, then the case must be remanded to the state court from which it came. § 1447(c). For the purposes of § 1447(c) and (d), however, when a case is remanded to a state court because the federal district court declines to exercise supplemental jurisdiction, the remand is not based on a lack of subject matter jurisdiction. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009).

In Personam Jurisdiction - Domicile

If authorized by statute, a court can have jurisdiction over a person who is domiciled in the state in which the court is located, even if the person is temporarily absent from that state. Domicile is established when a person with capacity resides in a state and intends to make that state his home. The same rules of domicile discussed in § I.C.3. Citizenship of Parties, supra, are applicable here. Statutory authorization can be enacted retroactively to apply to a cause of action arising before the enactment of the statute. McGee v. Int'l Life Ins. Co., 355 U.S. 220 (1957). Note that the United States has authority to subpoena a citizen of the United States living abroad to appear in court to testify.

Merchant Exception to Statute of Frauds

If both parties are merchants and a memorandum sufficient against one party is sent to the other party, who has reason to know its contents, and the receiving party does not object in writing within 10 days, then the contract is enforceable against the receiving party even though he has not signed it.

Perfection by Movement of collateral

If collateral is transferred to a person located in another state who becomes a debtor (i.e., takes the collateral subject to the security interest), then a perfected security interest generally remains perfected for one year after the transfer, unless perfection would have ceased earlier under the law of the former debtor's state. UCC § 9-316(a), cmt. 2.

Class Action and Diversity Jurisdiction

If diversity jurisdiction is invoked in a class action, then diversity of citizenship will be satisfied if the class representatives are diverse from the party or parties opposing the claim. When at least one representative plaintiff of a putative class action has a claim that meets the statutory jurisdictional amount (generally it must exceed $75,000), other persons with claims that do not meet the jurisdictional amount can be made part of the class under the doctrine of supplemental jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).

Defamation - Falsity

If either (i) the defamatory statement relates to a matter of public concern or (ii)the plaintiff is a public official or a public figure, then the plaintiff must prove that the defamatory statement is false as part of her prima facie case. At common law and in some states today, a private person plaintiff suing for defamation regarding a statement that does not involve a matter of public concern is not required to prove falsity as part of her prima facie case. However, the defendant may prove the truth of the statement as an affirmative defense.

Prior existing marriage

If either party has a valid prior existing marriage at the time that the subsequent marriage is entered into, then the latter marriage is void. However, if one of the parties had a good-faith belief that the marriage was valid, then some states allow the marriage to become valid once the impediment is removed. Other states require that once the impediment is removed, the parties must continue to cohabit, and one party must still continue to believe in good faith that it is a valid marriage.

Voidable Marriage - Intoxication

If either party was under the influence of drugs or alcohol at the time of marriage, which made that party incapable of contracting into a marriage, then that marriage may be annulled. In most jurisdictions, however, the parties must be able to demonstrate that they did not ratify the marriage by continuing to voluntarily live with each other after the ceremony.

Sanctions for loss of Electronically stored information

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (i) upon finding prejudice to another party, may order measures no greater than necessary to cure the prejudice, or (ii) upon finding that the party acted with the intent to deprive another party of the information, may presume the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter a default judgment. Rule 37(e).

Reduction of claim after filing for diversity jurisdiction

If events after the action has been filed reduce the amount in controversy below the statutory minimum, then jurisdiction will not be lost, as long as the original claim was made in good faith. Additionally, if the plaintiff eventually recovers an amount that is less than the statutory jurisdictional amount, then that fact will not render the verdict subject to challenge on appeal for lack of jurisdiction.

Identified Goods Remedy Under UCC

If goods have been identified and the buyer fails to pay the price as it becomes due, the seller may recover the price only if the seller is unable to sell the goods at a reasonable price after a reasonable effort or circumstances indicate that such an effort will not yield a sale. UCC§2-709(1)(b).

Cross-collateralization of PMSIs in inventory

If inventory subject to a PMSI secures not only its own price or enabling loan but also the price or enabling loan of other purchase-money inventory, then the security interest in the inventory is a PMSI not only to the extent that the inventory secures its own price but also the price of the other inventory. UCC § 9-103(b)(2), incl. cmts. 3, 4.

Divorce - Provocation

If misconduct is provoked by the moving party, then it is not grounds for divorce.

Nuisance - Injunctive Relief

If monetary damages are inadequate and the nuisance would otherwise continue, then courts may grant injunctive relief. In determining whether an injunction is appropriate, the courts will "balance the equities"; that is, weigh the social utility of the defendant's conduct against the harm caused to the plaintiff and others. However, the court need not consider the relative hardships if the defendant's sole purpose was to cause harm to the plaintiff or to violate the common standards of decency (sometimes called a "spite nuisance").

Supplemental Jurisdiction to Joinder of Plaintiffs

If multiple plaintiffs, however, join together under Rule 20, then supplemental jurisdiction can exist for a claim that does not meet the statutory jurisdictional amount, provided the parties still meet the requirement of complete diversity. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).

Unperfected vs. Unperfected

If neither interest is perfected, then the "first in time, first in right" rule applies with the critical time being the time of attachment. UCC § 9-322(a).

Implied-in-Fact Contract

If one party requests another party to perform a service but does not indicate a price, and the service is performed, this generally creates an "implied-in-fact" contract. The party who performed the requested service is generally entitled to recover the reasonable value of her services in a breach-of-contract action in which the party who enjoyed the benefit of the services refused to pay. An exception applies, however, when the services were rendered without the expectation of payment.

Exceptions to the Rule Against Perpetuities - Charity-to-charity exception

If property passes from one charity to another charity, then the interest of the receiving charity is not subject to the Rule.

Removal of Separate and Independent Claims in a Federal Question

If removal is sought on the basis of federal question jurisdiction, and the federal question claims in the state action are joined with claims that are not independently removable, then the entire case may be removed. The district court must then sever and remand to the state court any claims in which state law predominates. §1441(c).

Limitation on Removal in Diversity Cases

If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. §1441(b). There is no similar requirement for removal based on federal question jurisdiction.

Aggregation of Claims in Amount in Controversy

If the action involves multiple plaintiffs, then the value of their claims may be aggregated only if the multiple plaintiffs are enforcing a single title or right in which they have a common or undivided interest. If multiple plaintiffs, each having separate and distinct claims, unite for convenience or economy in a single suit, then each plaintiff's aggregate claims are judged separately in determining whether the amount-in-controversy requirement has been met. If the aggregate claims of at least one plaintiff separately meet the amount-in-controversy requirement, then the court has diversity jurisdiction over that plaintiff's claims, provided the diversity-of-citizenship requirement is met. The court may also have supplemental jurisdiction over the claims of any other plaintiff, even though that plaintiff's claims do not meet the amount-in-controversy requirement.

Federal Question Choice of Law

If the action is a federal question claim, then federal substantive and procedural law will control, as well as federal common law.

Economic Waste Damages

If the award of expectation damages would result in economic waste, then courts may instead, at their discretion, award damages equal to diminution in value. Economic waste occurs when the amount of damages owed is disproportional to any economic benefit or utility gained as a result of the award. See Jacob & Youngs v. Kent, 129 N.E. 889 (N.Y. 1921). Diminution in value, as an alternative to the benefit-of-the-bargain measure of recovery, is subject to the discretion of the court. If the breach is willful, and only completion of the contract will give the nonbreaching party the benefit of its bargain, then a court may award expectation damages even if that award would result in economic waste. See Rock Island Improvement Co. v. Helmerich & Payne, Inc., 698 F.2d 1075 (10th Cir. 1983).

Remedy for Delivered Goods Paid for By Check under UCC

If the buyer pays with a check that is subsequently dishonored, then the seller may reclaim the goods following a demand made within a reasonable time. The seller's right to reclaim is subject to the right of a good-faith purchaser. UCC §§ 2-507, 2-511(3).

Buyer's Breach - Risk of Loss

If the buyer repudiates or breaches after the goods have been identified but before the risk of loss shifts, then the risk of loss is immediately shifted to the buyer to the extent of any lack of insurance coverage by the seller. UCC§2-510(3).

Contract Acceptance by Shipment

If the buyer requests that the goods be shipped, then the buyer's request will be construed as inviting acceptance by the seller either by a promise to ship or by prompt shipment of conforming or nonconforming goods. If the seller ships nonconforming goods, then the shipment is both an acceptance of the offer and a breach of the contract. The seller is then liable for any damage caused to the buyer as a result of the breach. If, however, the seller "seasonably" notifies the buyer that the nonconforming goods are tendered as an accommodation, then no acceptance has occurred, and no contract is formed. The accommodation is deemed a counteroffer, and the buyer may then either accept (thereby forming a contract) or reject (no contract formed).

Wrongful Rejection under UCC

If the buyer wrongfully rejects, then the seller has three alternative remedies and would also be entitled to incidental damages. UCC § 2-703. The three remedies are (1) collect damages, (2) resell the goods, (3) recover the price.

Granting Motion to Dismiss

If the claim is dismissed, then the plaintiff may generally amend the pleading and continue the action. If the plaintiff does not wish to do so, then a judgment will be entered, and the plaintiff can appeal.

Remedies Against Secured Party - Minimum Statutory Damages for consumer goods

If the collateral is consumer goods and a secured party fails to comply with the default rules of Article 9, then a debtor or secondary obligor may recover an amount not less than the credit service charge, plus 10% of the principal amount of the obligation or the time-price differential, plus 10% of the cash price, even if the actual damages are less. UCC § 9-625(c).

Proceeds of non-filing collateral priority

If the collateral is of a type for which perfection may be achieved by a method other than filing and for which secured parties who so perfect generally do not expect or need to conduct a filing search (e.g., chattel paper, deposit accounts, negotiable documents, instruments, investment properties, letter-of-credit rights), then priority in the original collateral generally continues in the proceeds, provided that: i) The security interest in the proceeds is perfected; and ii) The proceeds are cash proceeds or proceeds of the same type as the original collateral. UCC § 9-322(c)(2), incl. cmt. 8.

Transferee vs. secured party with a security interest

If the collateral is transferred and transferee of the collateral is not a buyer, the security interest generally continues in the collateral unless the secured party authorized the transfer free of the security interest. UCC § 9-315(a)(1).

In Personam Jurisdiction and Choice-of-law provision

If the contract contains a choice-of-law provision indicating that the forum state's law is to be used in any action with regard to the contract, then this will be a significant factor in finding jurisdiction, as it establishes that the nonresident purposefully availed herself of the benefits of the forum's laws.

Tender - Destination Contract

If the contract is a destination contract (often identified by the words "F.O.B. (free on board) buyer's place of business"), then the seller must deliver the goods to a particular place (specified in the contract) and tender them there by holding the goods at the buyer's disposition and giving the buyer notice. UCC § 2-319(1)(b).

Destination Contract

If the contract is a destination contract (often identified by the words "F.O.B. buyer's place of business"), then the seller must deliver the goods to a particular place (specified in the contract) and tender them there by holding the goods at the buyer's disposition and giving the buyer notice.

Shipment Contract

If the contract is a shipment contract (often identified by the words "F.O.B. (free on board) seller's place of business"), then the seller must deliver the goods to the carrier, make a proper contract for their shipment, obtain and deliver any document necessary for the buyer to obtain possession of the goods, and give the buyer notice that the goods have been shipped.

Tender - Shipment Contract

If the contract is a shipment contract (often identified by the words "F.O.B. (free on board) seller's place of business"), then the seller must deliver the goods to the carrier, make a proper contract for their shipment, obtain and deliver any document necessary for the buyer to obtain possession of the goods, and give the buyer notice that the goods have been shipped. UCC §§ 2-319(1)(a), 2-504.

Remittitur

If the court determines that a verdict was excessive, then the court may offer a reduction of the verdict, known as a remittitur, and grant a new trial on the condition that the remittitur is not accepted. See Hetzel v. Prince William County., 523 U.S. 208 (1998). If the court determines that the verdict was inadequate, then the court only has the option of ordering a new trial. An additur (enhanced judgment) is not permitted.

Assignment of Account Rights

If the debtor assigns his right to receive payment on an account, chattel paper, or a payment intangible, then the secured party, after default or earlier if the debtor so agrees, may notify an account debtor (i.e., a person obligated on an account, chattel paper, or general intangible, but not a person obligated on a negotiable instrument) to make payment to the secured party. The notification must be authenticated by the debtor (i.e., assignor) or secured party (i.e., assignee) and must reasonably identify the rights assigned. Generally, a term in the agreement between the account debtor and the assignor that prohibits or otherwise restricts assignment is ineffective. UCC § 9-406.

Financing Statement and Debtor name change

If the debtor changes its name and the filed financing statement consequently becomes seriously misleading (i.e., the name on the financing statement does not meet the requirement of 9-503), then the secured party has four months in which to file an amendment to the financing statement reflecting the new name. Should the secured party fail to act within this four-month window, collateral acquired by the debtor after the four-month period is not covered by the financing statement. UCC § 5-907(c). If a new debtor becomes bound by a security agreement, and the difference between the name of the original debtor and the name of the new debtor causes the financing statement to be seriously misleading, then the secured party has a similar four-month window in which to act. UCC §§ 9-508, 9-507(c).

Denying Motion to Dismiss

If the defendant's motion to dismiss is denied, then the defendant may either answer the claim or allow a default judgment to be entered and then appeal.

Respondeat Superior - Position of Authority

If the employer authorizes the employee to act on his behalf, and the employee's position provides the opportunity to commit an intentional tort, the employer may be liable. For example, if an employee with the power to sign contracts enters into a fraudulent contract with a third party, the employer may be liable.

Unjustified Refusal of Financing Statement

If the filing office's refusal to accept a financing statement for filing is unjustified, then the financing statement is treated as having been filed. Such a financing statement is effective except with respect to a purchaser of the collateral who gives value in reasonable reliance upon the absence of the record from the files. UCC § 9-516(a), (d).

Denial of strict foreclosure for consumer goods 60% rule

If the goods are consumer goods in the possession of the secured party, and the debtor has paid at least 60% of the cash price in the case of a PMSI, or at least 60% of the obligation secured in a non-PMSI case, then the secured party cannot keep the goods in satisfaction of the debt; they must be sold. A debtor may waive this right to force a sale of the collateral, provided it is done after default in an authenticated agreement. UCC §§ 9-620(e), (f), incl. cmt. 12; 9-624(b).

Tender - Seller's place of business

If the goods are tendered at the seller's place of business, then the seller must place the goods at the disposition of the buyer and give the buyer notice, if notice is necessary to enable the buyer to take delivery. UCC§2-503.

Absolute Deed Grantee's Sale to a bona fide purchaser

If the grantee sells the property to a bona fide purchaser, the grantor cannot recover the property from the bona fide purchaser. However, the grantor can seek to recover the difference between the value of the property and the amount of the outstanding obligation.

Transfer of the deed to an independent agent

If the grantor purportedly gives property to a grantee through a third party and places a condition on the transfer of the deed by the third party to the grantee, whether delivery has taken place depends on the grantor's language. If the grantor retains an absolute right to recover the deed, then no valid delivery exists because transfer of title was not clearly intended. If the grantor does not retain a right to retrieve the deed, then the key is whether the grantor intends to make a present gift of a property interest. If so, the grantor cannot later void the gift. Instead, the conditional transfer is treated as creating a future property interest in the grantee. When the third party's transfer of the deed to the grantee is conditioned on the death of the grantor, the grantor's transfer of the deed to the third party must evidence the intent to make a present gift. When the grantor's intent is that the gift itself be effective only upon the grantor's death, the transfer can be ineffective due to a failure to comply with the requirements for a testamentary transfer (i.e., the Statute of Wills).

Form of Notice for Personal Jurisdiction

If the identity and address of an interested party are known or obtainable through reasonable efforts, then notice through in-person delivery, registered mail, return receipt requested, or some other means likely to notify the particular individual is required. Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983). If the plaintiff knows that the defendant did not receive notice, then the plaintiff cannot proceed unless there are no other reasonable methods to notify the defendant. Jones v. Flowers, 547 U.S. 220 (2006). If the identity or address of interested parties is not obtainable through reasonable efforts, then other means, such as publication of notice in newspapers, may be satisfactory. The constitutional test is, generally, what is reasonable under the circumstances. The standards are less strict for in rem and quasi-in-rem cases than for in personam cases. When there are multiple defendants, each defendant must be served, but the manner of service will depend on whether their identities and addresses are known or unknown. In situations in which an agent is appointed, either by contract or by statute, the defendant will not be subject to personal jurisdiction if the agent did not advise the defendant of service of process. This rule does not apply when the defendant selects his own agent.

Negligence - Effect of Intervening Cause That Doesn't Supersede

If the intervening negligent act is not a superseding cause, then the original defendant and the actor responsible for the intervening negligent act can be held jointly and severally liable to the plaintiff.

Automobile Owners - family-purpose doctrine

Many jurisdictions, through either legislative enactments or judicial decisions, have adopted the family-purpose doctrine, providing that the owner of an automobile may be liable for the tortious acts of any family member driving the car with permission.

Acceptance by Conduct Under UCC

If the offer and purported acceptance differ to such a degree that there is no contract, but the parties have begun to perform anyway (i.e., demonstrated conduct that recognizes the existence of a contract), then Article 2 provides that there will be a contract, and its terms will consist of those terms on which the writings of the parties agree, together with any supplementary terms filled in by the provisions of the UCC. UCC § 2-207(3).

Partial Performance of Contract

If the offer is for a unilateral contract, the offeror cannot revoke the offer once the offeree has begun performance. Once performance has begun, the offeree will have a reasonable amount of time to complete performance but cannot be required to complete the performance. A unilateral contract is not formed until performance is complete. Restatement (Second) of Contracts § 45. Commencement of performance of a bilateral contract operates as a promise to render complete performance. Restatement (Second) of Contracts § 62.

Termination of Contract Offer by Time Lapse

If the offer specifies a date on which the offer terminates, then the time fixed by the offer controls. If the offer states that it will terminate after a specified number of days, the time generally starts to run from the time the offer is received, not sent, unless the offer indicates otherwise. If the offeree is aware (or should have been aware) that there is a delay in the transmittal of the offer, the offer expires when it would have expired had there been no delay. If the offer does not set a time limit for acceptance, the power of acceptance terminates at the end of a reasonable period of time. What is reasonable is a question of fact and depends on a variety of factors, including the nature of the contract, the purpose and course of dealing between the parties, and trade usage. For an offer received by mail, an acceptance that is sent by midnight of the day of receipt generally has been made within a reasonable period of time. Unless otherwise agreed upon, if the parties bargain in person or via telephone, the time for acceptance does not ordinarily extend beyond the end of the conversation. Restatement (Second) of Contracts § 41.

Indefinite automatic perfection pursuant to financing statement

If the original financing statement is broad enough to encompass the proceeds or the secured party takes the necessary steps to amend the financing statement to cover the proceeds within the 20-day period, the security interest in the proceeds continues to be perfected. UCC § 9-315(d)(1), incl. cmt. 5.

Easement by implication

If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the sale of the dominant parcel, the parties intended the easement to continue if the prior use was continuous, apparent (open and obvious), and reasonably necessary to the dominant land's use and enjoyment (as distinguished from an easement by necessity, which requires strict necessity).

Procedural Effect of Res Ipsa Loquitur

If the plaintiff establishes a prima facie case of res ipsa, then the trial court should deny the defendant's motion for a directed verdict, and the issue of negligence must be decided by the trier of fact. In most jurisdictions, res ipsa does not require that the trier of fact find negligence on the defendant's part. It simply establishes an inference of negligence sufficient to avoid dismissal of the plaintiff's action.

Defamation - Malice

If the plaintiff in a defamation action is either a public official or a public figure, then the plaintiff is required to prove that the defendant acted with actual malice; that is, he either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement. To establish a reckless disregard for the truthfulness of a statement, the plaintiff must prove that the defendant entertained serious doubts about its truthfulness; mere failure to check facts is not sufficient. New York Times Co. v. Sullivan, 376 U.S. 254 (1964); St. Amant v. Thompson, 390 U.S. 727 (1968). If the plaintiff in a defamation action is a private person and the defendant's statement involves a matter of public concern, then the plaintiff is constitutionally required to prove that the defendant acted with fault—either negligence or actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The level of fault will determine what damages may be recovered.

Defamation - Matter of Public Concern

If the plaintiff is a private person (neither a public figure nor a public official) and the statement involves a matter of public concern, then the defendant is entitled to limited constitutional protections, though not as significant as those available when the person being defamed is either a public official or a public figure.

Defamation - Private Person

If the plaintiff is a private person and the statement is not a matter of public concern, then there are no constitutional restrictions on the law of defamation. However, many states now apply the same principles of defamation law to all cases involving private persons as plaintiffs.

Negligence - Alternative Causation

If the plaintiff's harm was caused by (i) one of a small number of defendants—usually two and almost never more than four or five, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff's harm.

Negligence - But-for Test

If the plaintiff's injury would not have occurred but for the defendant's tortious act or omission, then the defendant's conduct is a factual cause of the harm. If the injury would have occurred despite the defendant's conduct, then there is no factual cause.

Indefinite automatic perfection by cash proceeds

If the proceeds are identifiable cash proceeds and the security interest in the original collateral is perfected, the perfected security interest in the proceeds continues indefinitely, even though the security interest in the original collateral subsequently ceases to be perfected. The identification of cash proceeds is left to common law. UCC § 9-315(d)(2), incl. cmt. 3. Note that cash proceeds include more than just money. They also include checks, deposit accounts, and the like. UCC § 9-102(a)(9).

Risk of Loss - Seller's Breach

If the seller delivers nonconforming goods, the risk of loss remains on the seller until the buyer accepts or there is a cure. If the buyer rightfully revokes acceptance, the risk of loss shifts back to the seller to the extent of any lack of insurance coverage by the buyer. UCC§2-510(1,2).

Filing collateral as proceeds of non-filing collateral

If the proceeds of non-filing collateral are filing collateral (i.e., goods, accounts, commercial tort claims, general and payment intangibles, nonnegotiable documents) and the security interest in the non-filing collateral has been perfected by a method other than filing (e.g., control or possession), then priority among conflicting perfected interests in the filing collateral is determined by the time of filing of a financing statement that covers the collateral (i.e., the first-to-file rule). UCC § 9-322(d).

Strict Product Liability - Substantial Change in Product

If the product substantially changes between the time it is distributed by the manufacturer and the time it reaches the consumer (e.g., a part is reconditioned), then this change may constitute a superseding cause that cuts off the liability of the original manufacturer.

Mortgagee's liability after transfer

If the promissory note given by the mortgagor-borrower is a negotiable instrument, then the mortgagor-borrower is generally obligated to pay the holder of the note. This is true even when the mortgagor-borrower does not have notice that the original mortgagee has transferred the note to a third party and mistakenly pays the original mortgagee. However, a promissory note given in connection with a mortgage may not be a negotiable instrument because the note does not contain the words of negotiability (i.e., "pay to the order of" or "pay to bearer") or payment is subject to the conditions that prevent negotiability. In such cases, the modern trend allows the mortgagor to pay the original mortgagee until the mortgagor receives notice of the transfer. Restatement (Third) of Property: Mortgages § 5.5.

Transfer of mortgage promissory note

If the promissory note is nonnegotiable, ownership of the note may be transferred by a separate document that assigns the mortgagor's rights to the transferee. If the promissory note is a negotiable instrument, it may be transferred only by negotiation, which may require not only delivery of the note, but also its indorsement.

Challenging Removal

If the propriety of the removal is challenged, then the burden of establishing proper removal is on the party who removed the case.

Spousal Maintenance - cohabitation

If the receiving spouse cohabits with someone who is not family, then spousal support may be modified if the recipient spouse's need for the support decreases as a result of the cohabitation. Support, however, typically is not automatically terminated, as the new cohabitant does not have a legal duty to support the alimony recipient. Cohabitation can also forestall the award of spousal support. The courts, however, will also consider the nature of the cohabitation, such as whether the cohabitation involves a sexual relationship. Cohabitation does not terminate alimony pendente lite, which is paid during the pendency of the divorce litigation.

Negligence Per Se - Vagueness

If the requirements of the statute at issue were presented to the public in a confusing manner (e.g., extremely vague or ambiguous), then the defendant's violation is excused.

Declaratory Judgment for Contract

If the rights and obligations of the parties under a contract are unclear, and an actual dispute exists between the parties concerning those rights and obligations, then either party may bring a declaratory-judgment action to obtain an adjudication of those rights and duties. Declaratory judgment is not available, however, to resolve moot issues or theoretical problems that have not risen to an actual dispute.

Objection to admission of evidence

If the ruling admits evidence, a party must make a timely objection or motion to strike and must usually state the specific ground for the objection or motion in order to preserve the admissibility issue for appeal. A party is not required to state the ground if it is apparent from the context. Fed. R. Evid. 103(a)(1).

Offer of proof for exclusion of evidence

If the ruling excludes evidence, a party must make an offer of proof in order to preserve the evidence for appellate review of the ruling. An offer of proof is an oral or written explanation of the relevance and admissibility of the evidence made on the record. The court may direct that an offer of proof be made in question-and-answer form. An offer of proof is not necessary if the substance of the evidence is apparent from the context. Fed. R. Evid. 103(a)(2),(c).

PMSI and priority

If the secured party has a PMSI that is perfected before or within 20 days after the debtor receives possession of the collateral, then the security interest takes priority over the rights of a creditor that arose between the time the security interest attached and the time of filing. A secured party with a PMSI will prevail over any creditor that obtains a lien within that 20-day period. UCC § 9-317(e).

Temporary Perfection by Delivery of collateral

If the secured party makes the collateral available to the debtor for the purpose of selling or exchanging the collateral, then the security interest in the collateral remains temporarily perfected for 20 days. Collateral subject to this rule includes certificated securities, negotiable documents, instruments, and goods in the possession of a bailee and for which a negotiable document has not been issued. UCC § 9-312(f), (g).

Tender - Nonconforming Segment

If the seller makes a nonconforming tender or tenders nonconforming goods under one segment of an installment contract, the buyer can reject only if the nonconformity: (1) Substantially impairs the value of that shipment to the buyer; and (2) Cannot be cured. If the seller makes adequate assurances that he can cure the nonconformity, then the buyer must accept the shipment. UCC § 2-612(2).

Termination of Easement by Estoppel

If the servient estate owner changes position to his detriment in reliance on statements or conduct of the easement holder that the easement is abandoned, then the easement holder may be estopped from asserting the easement.

Negligence Per Se - Reasonable Ignorance

If the statute imposes an obligation only under certain factual circumstances that are not usually present, and the defendant is not aware that these circumstances are present and further proves that his ignorance was reasonable, then the defendant's violation of the statute is excused for the purposes of negligence per se.

Landlord Remedy for Tenant Failure to Pay Rent

If the tenant fails to pay rent, then the landlord can sue both for damages and to remove the tenant from the property. An agreement to pay rent on or by a certain date is a material term of a lease and, thus, late payment of rent is considered a material breach of the lease. Thus, a landlord may bring an action for damages.

Covenant of Quiet Enjoyment - Partial Eviction

If the tenant is prevented from possessing or using a portion of the leased premises, then the tenant may seek relief for a partial actual eviction. The type of relief granted depends on who prevented the possession. If it's the landlord, the tenant is completely excused from paying rent for the entire premises if the landlord is responsible for partial eviction. If third parties, the tenant must pay the reasonable rental value of the premises occupied if the partial eviction is by a third party with a superior claim to the property. The tenant is not excused from paying rent if a third-party adverse possessor/trespasser partially evicts the tenant.

Limitation on deficiency - consumer transactions

If the transaction is a consumer transaction and a secured party's collection, enforcement, disposition, or acceptance is not in accord with Article 9, then many courts follow the rebuttable presumption rule that is applicable to a commercial transaction. Some courts, however, apply an absolute bar rule, under which the non-complying secured party cannot recover a deficiency. UCC § 9-626(b), incl. cmt. 4.

Rule Against Perpetuities - Special rule for transfer to a class

If the transfer of a future interest is made to a class, and the Rule voids a transfer to any member of a class, then the transfer is void as to all class members, even those whose interests are already vested (i.e., "bad as to one, bad as to all").

Transferee's liability in assuming mortgage

If the transferee-buyer assumes the mortgage obligation, then, upon default, the transferee-buyer, as well as the mortgagor-borrower, is personally liable to the lender. Most jurisdictions do not require that the assumption agreement be in writing; if proven, an oral agreement is enforceable. A minority of jurisdictions will imply an assumption of the mortgage when the transferee-buyer pays the seller the difference between what the house was worth and the outstanding balance on the mortgage obligation. Heid v. Vreeland, 30 N.J. Eq. 591 (1879).

Transferee's liability when "subject to" a mortgage

If the transferee-buyer takes title "subject to" an existing mortgage obligation, then the transferee-buyer is not personally liable upon default. The mortgaged property is the principal, and the transferor?seller is the only party liable for a deficiency. The transferee?buyer takes title, which allows him to possess the land, but that possession has no effect on any deficiency. If a deed is silent or ambiguous as to the transferee-buyer's liability, then the transferee?buyer is considered to have taken the property subject to the mortgage obligation.

Parol Evidence - Total Integration

If the writing completely expresses all of the terms of the parties' agreement, then it is a total integration, and the parties cannot introduce any extrinsic evidence (oral or written) of prior or contemporaneous understandings or negotiations.

Lender PMSI vs. Seller PMSI

If there are two competing PMSIs and one PMSI secures the price of the collateral for the seller of the collateral while the other PMSI secures loans enabling the purchase of the collateral, then the PMSI taken by the seller has priority over the PMSI taken by the lender. UCC § 9-324(g)(1), incl. cmt. 13.

PMSI vs. PMSI

If there are two or more competing PMSIs, then the first-to-file-or-perfect rule generally governs priority. UCC §§ 9-324(g)(2); 9-322(a).

Rule Against Perpetuities - Conditional passage of interest

If there is a condition imposed on the passing of a future interest subject to the Rule that is not confined to a specified time limit that meets the Rule's testing period, such as probating the will or termination of a current military conflict, then the future interest runs afoul of the Rule.

Choice of Law in Judge-jury allocation

If there is a jury in a diversity case on a state-law claim, then the jury—rather than a judge—will decide all factual issues in the case, regardless of whether state law would provide otherwise. Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S. 525 (1958).

Contributory Negligence - Last clear chance

In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so. This doctrine has been abolished in most comparative-fault jurisdictions.

Error in the description of collateral in a financing statement

If there is an error with respect to the collateral covered by a financing statement, then the debtor may demand that the secured party prepare a termination statement with respect to the erroneous collateral and provide the debtor with the termination statement for the debtor to file, or in the case of consumer goods, the secured party is the one who must file the termination statement. UCC § 9-513.

Priority of Interest in Mortgage

If there is more than one interest (e.g., two or more mortgages) in the property being foreclosed, a valid foreclosure terminates any interest in the foreclosed property that is junior to the interest being foreclosed, but it has no effect on any senior interest. In determining the priority of interests (i.e., whether an interest is junior or senior to another interest), the basic "first in time, first in right" rule is applied. However, this rule is subject to various exceptions.

Rule Against Perpetuities - No Measuring Life

If there is no measuring life, then the applicable vesting period is 21 years from the time that the future interest is created.

Tort Liability Contribution

If two or more tortfeasors are subject to liability to the same plaintiff, and one of the tortfeasors has paid the plaintiff more than his fair share of the common liability, then he may sue any of the other joint tortfeasors for contribution and recover anything paid in excess of his fair share. Additionally, a person seeking contribution must prove that the person against whom contribution is sought would have been liable to the plaintiff in an amount and share equal to or greater than the amount sought as contribution. See Restatement (Third) of Torts: Apportionment of Liability § 23 (2000).

Negligence - Concert of Action

If two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff's harm, then all defendants will be held jointly and severally liable.

Remedial Change of Venue

If venue in a case is improper, then the district court must dismiss the case, or "if it be in the interest of justice," transfer the case to any district or division in which it could have been brought. If no timely objection is made to venue, then nothing prevents the district court from maintaining jurisdiction over the case. § 1406.

Surplus and deficiency from disposition of collateral

If, after the required payments and applications of proceeds have been made, there is a surplus, the secured party generally must pay the surplus to the debtor. UCC §§ 9-608(a)(4); 9-615(d)(1). If, after the required payments and applications of proceeds have been made, there is a deficiency, then the obligor generally is liable for the deficiency. UCC §§ 9-608(a)(4); 9-615(d)(2).

Parol Evidence - Partial Integration

If, on the other hand, the writing sets forth the parties' agreement about some terms, but not all terms, then it is a partial integration. The parties are then permitted to introduce supplementary extrinsic evidence (oral or written) of other terms as long as the evidence is consistent with the writing, but not if the evidence contradicts the terms of the writing.

Implied Actual Authority

Implied actual authority allows an agent to take whatever actions (designated or implied in the principal's manifestations) are properly necessary to achieve the principal's objectives, based on the agent's reasonable understanding of the manifestations and objectives of the principal. Restatement (Third) of Agency §2.01, cmt. b (2006).

Implied Condition of Contract

Implied conditions that are deemed to be part of the contract because the nature of the agreement suggests that the parties truly intended the condition but failed to expressly include it, are "implied in fact" conditions. These are distinguished from "constructive" or "implied in law" conditions, which are supplied by a court if reasonable under the circumstances. Restatement (Second) of Contracts § 226 cmt. c. The most common types of court-supplied implied conditions are called "constructive conditions of exchange" and arise most frequently in construction and employment contracts. A court will imply that the builder or employee must perform first (at least "substantially") before the other side's performance (the payment of money) becomes due. In addition to good faith, the UCC implies a duty of cooperation on the parties when performance of one party is dependent upon the cooperation of the other party. If a party fails to cooperate, the other party may suspend her own performance without being in breach. UCC § 2-311(3).

Implied Reciprocal Servitudes

Implied reciprocal servitudes (also called "mutual rights of enforcement" and "reciprocal negative servitudes") arise typically in planned subdivisions. Most jurisdictions impose the following requirements to enforce an implied reciprocal servitude: (1) There must be intent to create a servitude on all plots (i.e., a common scheme); (2) The servitude must be negative (i.e., a promise to refrain from doing something); and (3) The party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice. Reciprocal negative covenants are implied from the common scheme. Note that no writing is required for an equitable servitude created by implication.

Divorce - Imprisonment

Imprisonment of one spouse for a specified period of time may be grounds for divorce.

Exempt from Imputed Contributory Negligence

Imputed contributory negligence is disfavored. Imputed contributory negligence does not apply to: (1) A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit against a third party; (2) A child plaintiff whose parent's negligence was a contributing cause of her harm, in a suit against a third party; (3) An automobile passenger suing a third-party driver if the negligence of the driver of the car in which the passenger was riding also contributed to the accident; or (4) An automobile owner in an action against a defendant driver for negligence when the driver of the owner's car also was negligent.

Imputed Contributory Negligence

Imputed contributory negligence occurs when another person's fault is "imputed" to the plaintiff to prevent or limit his recovery due to the other person's fault. For example, an employee's negligent driving may prevent or reduce an employer's recovery from a third party if the employer's car is damaged by the third party's negligence. The fault of one business partner can be imputed to another business partner as contributory negligence when the second party is suing a third party.

Effect of Partition of Concurrent Estate

In a "partition in kind" action, the court divides the jointly owned property into distinct physical portions. If physical division of the property is not practicable or fair, the court may order a partition by sale and distribute the proceeds among the co-tenants in accordance with their ownership interests. Courts prefer a partition in kind.

CIF Contract

In a C.I.F. contract, the price includes the cost of the goods, the cost of transporting the goods, and the cost of insuring the goods during shipment. In a C & F contract, the price includes the cost of the goods plus the cost of shipment.

Venue in Case Against Foreign State

In a case against a foreign state, including a political subdivision, agency, or instrumentality, venue is proper in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated. If the case is against a foreign state or its political subdivision, venue is also proper in the United States District Court for the District of Columbia. § 1391(f).

Venue in Multiparty, Multiforum Litigation

In a case in which the jurisdiction of the court is based on the multiparty, multiforum provision (e.g., at least 75 natural person died in an accident at a discrete location), venue is proper in any judicial district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place. § 1391(g).

Law of the Situs

In a case involving real property, if there is a conflict as to which state's law should be applied to resolve the issue, the general conflict-of-laws rule is that the law applied by the forum court should be determined by the conflict?of-laws rule that would be applied by the courts of the state where the property is located (i.e., the situs). Usually, the conflict-of-laws rule of the situs state directs the application of its own local law on that issue (i.e., the law of the situs) in resolving the matter.

Trespass to Chattel - Damages

In a case of dispossession, a plaintiff may recover for: (1) The actual damages caused by the interference; and (2) The loss of use. In circumstances of use or intermeddling, the plaintiff may recover only when there are actual damages.

Venue in case removed from state court

In a case that is removed from state court, venue is proper in the federal district court in the district where the state action was pending. It is immaterial that venue would not have been proper under the general venue rule if the action had been brought initially in that district. § 1441(a); Polizzi v. Cowles Magazines, Inc., 345 U.S. 663 (1953).

Peremptory Challenges

In a civil case, as in a criminal case, peremptory challenges may not be made for racial or gender-based reasons. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); J.E.B. v. Alabama, 511 U.S. 127 (1994). (See MBE Criminal Procedure outline V.A.3.b.5 "Peremptory Challenges," regarding the rules for contesting a discriminatory use of a peremptory challenge.) Rule 47(b) requires the court to allow the number of peremptory challenges provided by 28 U.S.C. § 1870, which is three for each party in civil cases. Several defendants or several plaintiffs may be considered as a single party for the purposes of making such challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.

Instructing the Jury on noticed facts

In a civil case, the jury must be instructed to accept the noticed fact as conclusive. Fed. R. Evid. 201(f). In a criminal case, the jury must be instructed that it may or may not accept any judicially noticed fact as conclusive. Fed. R. Evid. 201(f).

Class actions generally

In a class action, the court authorizes a single person or a small group of people to represent the interests of a larger group. Rule 23 and the Class Action Fairness Act of 2005 govern class actions.

Criminal standard of evidence

In criminal cases, the prosecution must prove each element of a crime beyond a reasonable doubt to overcome the defendant's presumption of innocence. In re Winship, 397 U.S. 358 (1970).

Surplus and deficiency in consumer goods transactions

In a consumer goods transaction, a secured party must send an explanatory notice to the debtor detailing the deficiency and/or surplus and the basis on which it was calculated. This explanation, which must be in writing, can be demanded by the debtor or consumer obligor, in which case the secured party has 14 days after receipt of the demand in which to send the explanation or, in the case of a deficiency, a waiver of the secured party's right to the deficiency. A secured party who fails to send such a notice may be liable for any loss caused, plus $500. UCC §§ 9-616; 9-625(e).

Denial of partial strict foreclosure in a consumer transaction

In a consumer transaction, a secured party can accept the collateral only in full satisfaction of the obligation; an acceptance in partial satisfaction of the obligation is not allowed. Any attempted acceptance in partial satisfaction is void. UCC § 9-620(g), incl. cmt. 12.

Strict Product Liability - Contributory Negligence

In a contributory-negligence jurisdiction, the plaintiff's negligence generally is not a defense to a strict-products-liability action when the plaintiff negligently failed to discover the defect or misused the product in a reasonably foreseeable way, but it generally is when the plaintiff's fault consisted of unreasonably proceeding in the face of a known product defect. Suppliers are required to anticipate reasonably foreseeable misuses of their products.

Federal Diversity Choice Of Law

In a diversity action, the district court is required to apply the substantive law of the state in which the district court is located, if there is no federal law on point. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). With regard to procedure in a diversity action, however, if a procedural issue is addressed by a valid federal law (e.g., a statute or Federal Rule of Evidence), then the federal law will be applied, even if a state rule or statute is in conflict. Hanna v. Plumer, 380 U.S. 460 (1965). If no federal law applies, then the general rule is that the district court must follow state law with regard to substance, but it can choose to ignore state law with regard to procedure under certain circumstances.

Choice of law in assessment of attorney's fees

In a diversity case on a state-law claim, the federal court may properly use its inherent power to assess attorney's fees as a sanction for a defendant's bad-faith conduct during the litigation, even if the law of the forum state provides that attorney's fees may not be awarded to a successful party. Chambers v. NASCO, Inc., 501 U.S. 32 (1991).

Venue Transfer in Diversity Cases

In a diversity case, if the court transfers the case, then the district court to which the case is transferred must apply the law that would have been applied in the district court that transferred the case. Ferens v. John Deere Co., 494 U.S. 516 (1990).

Venue Transfer in Federal Question

In a federal question case transferred to a district court in another appellate circuit, the district court to which the case is transferred must apply the federal law as interpreted by its federal Court of Appeals and not the interpretation of the federal Court of Appeals in which the district court that transferred the matter is located.

Child Emancipation

In a few situations, a child no longer lives with his parents and is self-supporting. In such a case, the child may petition the court for a decree of emancipation. This means that the child is no longer considered a minor in the eyes of the law and therefore has all the duties and obligations of adulthood. Parents no longer have a duty to support his, and in fact, some jurisdictions require the child to support the parents in later years. Married minors are also considered to be emancipated in most states.

Best-interest-of-the-child Guardian ad litem

In a highly contested child-custody case, legal counsel may be appointed for the child. This attorney's duty is to advocate for the child's preferences and act on her behalf. The attorney's fees are usually paid by the parents.

Mortgage and joint tenancy

In a lien state, a mortgage interest is treated as a lien that does not affect a joint tenancy until foreclosure. In a title state, the joint tenancy is severed upon the granting of a mortgage, and the interest is converted into a tenancy in common. In either case, upon foreclosure, the mortgagee may only foreclose on the undivided tenancy in common interest of the mortgagor, and the interests of other co-tenants to the property will not be affected.

Redemption of mortgage by others

In addition to being exercised by the mortgagor, the right of redemption may also be exercised by anyone whose right to mortgaged property stems from the mortgagor's interest in the property, such as an heir, a devisee, a purchaser, a donee, or a tenant, as well as a junior lienholder to whom the mortgagor has granted a second mortgage that is subordinate to the mortgage that is redeemed.

Negligent Misrepresentation

In a majority of jurisdictions and under the Second Restatement, the elements are: i) The defendant provides false information; ii) As a result of the defendant's negligence; iii) During the course of his business or profession; iv) Causing the plaintiff to justifiably rely upon the information; and v) The plaintiff either is in a contractual relationship with the defendant or is a third party known by the defendant as one for whose benefit the information is supplied. Under this rule, the accountant who regularly conducts audits and furnishes financial statements and opinions routinely required by lenders, investors, purchasers, or others is not liable unless she is informed that an identified third party or identified third parties will be using the statement for a particular purpose.

Duty to Disclose Defects in Homes

In a majority of jurisdictions, a seller of a residence has a duty to disclose all known material physical defects to the buyer. The defect must not be readily observable or known to the buyer. To be material, the defect must substantially affect the value of the residence, impact the health or safety of a resident, or affect the desirability of the residence to the buyer. When a seller fails to make such disclosures, the buyer may rescind the sale or seek damages. Some states limit this duty to commercial sellers (e.g., builders); other states impose this duty on all sellers. Even in a jurisdiction that does not require an affirmative disclosure by the seller, a buyer can sue the seller for misrepresentation or fraudulent concealment. General disclaimers (e.g., "property is sold as is") that, in some states, are sufficient to disclaim this duty are not sufficient to preclude the seller's liability for misrepresentation or fraudulent concealment.

Lien theory vs. title theory

In a majority of the states, the mortgagor (borrower) is treated as the owner of the real property interest, and the mortgagee (lender) is treated as the holder of a lien on that interest. These states are referred to as "lien states." By contrast, in a minority of states, the mortgagee is treated as the owner of the real property interest, and the mortgagor possesses the right to regain ownership of the real property upon satisfaction of the obligation. These states are referred to as "title states."

Assumption of Risk in Sports

In a negligence claim brought by a spectator of or a participant in an athletic event or similar activity, the spectator or participant necessarily subjects himself to certain risks that are usually incident to and inherent in the game or activity. Some courts hold that the other players or facility owners therefore do not owe the spectators a duty of care; others allow the defendant to defend against the claim using the affirmative defense of assumption of the risk.

Judgment on Partial findings

In a nonjury trial, a defendant, instead of making a motion for a judgment as a matter of law, can move for a judgment on partial findings if the plaintiff has failed to prove his case. Rule 52(c).

Mortgagee's right to possession - title theory

In a title theory state, legal title is in the mortgagee until the mortgage has been fully satisfied. Thus, the mortgagee is entitled to take possession at any time and can certainly take possession as soon as default occurs. As such, the mortgagee can make repairs, take rent, prevent waste, and lease out vacant space. While in practice this may seem advantageous, few mortgagees take advantage of this right because of the liability risks involved. A mortgagee in possession assumes a duty to take reasonable care of the property, and she incurs liability as if she were the owner. Some mortgagees instead opt to have the court appoint a receiver to manage the property and intercept the rents prior to foreclosure.

PMSI "Dual Status" rule

In a transaction other than a consumer-goods transaction, a PMSI does not lose its status as a PMSI merely because: i) The collateral also secures an obligation that is not a purchase-money obligation (e.g., equipment that secures a bank loan to the buyer for the purchase of the equipment is subsequently used as collateral for a second bank loan to the buyer); ii) The collateral that is not purchase-money collateral also secures the purchase-money obligation (e.g., equipment owned by the debtor prior to the time that the debtor borrows money to buy additional equipment when the previously owned equipment also serves as collateral for the purchase-money obligation); or iii) The obligation has been renewed, refinanced, consolidated, or restructured. Under the "dual status" rule, a security interest may be a PMSI to some extent and a non-PMSI to some extent. In such a transaction, the secured party claiming a PMSI has the burden of establishing the extent to which the security interest is a PMSI. Note that for consumer-goods transactions, the treatment of a PMSI as having a "dual status" is left to the courts. UCC § 9-103(f)-(h).

Notice of Performance of Unilateral Contract

In a unilateral contract, an offeree is not required to give notice after performance is complete, unless he has reason to know that the offeror would not learn of performance within a reasonable time, or the offer requires notice. If notice is required but not provided, the offeror's duty is discharged, unless: (1) The offeree exercises reasonable diligence to notify the offeror; (2) The offeror learns of performance within a reasonable time; or (3) The offer indicates that notification of acceptance is not required. Restatement (Second) of Contracts § 54(2).

Landlord's Duty in the Amount of the Security Deposit

In about half of the states, the maximum amount of a security deposit is set by statute and generally ranges from one to two months' rent. Some states permit an additional amount to be collected from tenants with pets, or a set a lower maximum amount if the tenant is a senior citizen. Typically, the landlord is required to give the tenant a receipt for the security deposit. The landlord is often required to maintain the security deposit in an escrow account, and, in some states, interest earned on the account belongs to the tenant, not the landlord.

TRO Requirements

In addition to being filed with the clerk, the TRO must state the following: i) The date and time issued; ii) The irreparable harm suffered by the plaintiff; and iii) The reasoning behind the ex parte issuance. Rule 65(b)(2).

Negligence - Proximate Cause

In addition to proving actual causation, the plaintiff must prove that the defendant's tortious conduct was a proximate cause of her harm. Proximate cause is a legal limitation on actual cause, focusing on foreseeability. Some courts and the Third Restatement prefer the phrase "scope of liability." The majority rule for proximate cause requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the risk created by the defendant's conduct.

Personal Jurisdiction Opportunity to Be Heard

In addition to requiring notice of the claim being made, due process requires that a defendant be given an opportunity to be heard whenever there is a state-sponsored interference with a defendant's property interest. The state must be an active participant in the interference for due process to apply.

Notice of Disposition of Collateral Requirements for Consumers

In addition to the above requirements for a non-consumer goods transaction, proper notice in a consumer goods transaction must also include: i) A description of any liability for a deficiency of the person to whom the notification is sent; ii) The telephone number from which the redemption amount is available; and iii) The telephone number or mailing address from which additional information concerning the disposition and secured obligation is available.

Evidence of Paternity besides Blood Test

In addition to the blood test, evidence such as (1) prior statements regarding paternity by deceased family members, (2) medical testimony on the probability or improbability of conception, (3) the defendant's acknowledgment of paternity, and, in some states, (4) the resemblance of the child to the defendant is admissible to prove paternity.

Notification requirements for accepting collateral

In addition to the debtor, a secured party wishing to accept collateral in full or partial satisfaction of the obligation must send his proposal to: i) Any secured party or lien holder who, 10 days before the debtor consented to the acceptance, held a security interest that was perfected by filing or by compliance with a statute, treaty or regulation; and ii) Any person from whom the secured party received, before the debtor consented to the acceptance, an authenticated notification of a claim of an interest in the collateral. A secured party wishing to accept collateral in partial satisfaction must also send its proposal to any secondary obligor. An objection to the acceptance by a person to whom notification was sent is effective if it is received by the secured party within 20 days from the date that the notification was sent to that party. UCC § 9-620(a), (d), incl. cmt. 8.

Removal Statutes Beyond 1441

In addition to the general rule regarding removal, other statutes authorize removal in specific cases, including: i) Suits against the United States, any federal agency, or federal officers for acts under color of office (§ 1442); ii) Suits against federal employees for injuries caused from their operation of a motor vehicle within the scope of their employment (§ 2679(d)); and iii) Actions involving international banking (12 U.S.C. § 632). In addition, certain statutes prohibit removal for otherwise removable actions, including: i) Actions arising under the Employers' Liability Act and under the Jones Act against a railroad or its receivers or trustees (§ 1445(a)); ii) Actions against carriers for delay, loss, or damage in shipments, when the amount in controversy does not exceed $10,000 (§ 1445(b)); iii) Actions arising under the workers' compensation laws of the state in which the action is brought (§ 1445(c)); and iv) Actions arising under § 40302 of the Violence Against Women Act of 1994.

Legislative Jurisdiction

In addition to the types of jurisdiction listed above, there are federal courts created by Congress with jurisdiction over specific types of cases. Briefly, these include: i) The United States Claims Court (formerly "the Court of Claims"), with original jurisdiction over actions brought against the United States or its officer, or concerning federal property; ii) The United States Court of Appeals for the Federal Circuit, with appellate jurisdiction over claims against the federal government or its officers, etc.; iii) The Court of International Trade, with jurisdiction over foreign states; iv) United States Tax Court, with jurisdiction over taxpayer challenges to Internal Revenue Service (IRS) deficiency determinations; and v) United States Bankruptcy Court, with jurisdiction over bankruptcy matters. There is no amount-in-controversy requirement in the above cases, unless an action is brought against a party other than the United States under the Consumer Product Safety Act.

Future Advances as Given Value

In addition to value given at the time that a security agreement is entered into, the security agreement may provide that the collateral secures future value (e.g., future advances) given by the secured party. Note that with regard to perfection of a security interest, however, the financing statement is not required to refer specifically to future value. UCC § 9-204(c).

Negligence - Economic Loss

In addition, a plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. However, once a plaintiff has proven non-economic injury, he is entitled to recover both economic and non-economic damages.

Warranties and Contributory Negligence

In contributory-negligence jurisdictions, most courts hold that contributory negligence does not bar a plaintiff's warranty claim, except when the contributory negligence consists of the unreasonable encountering of a known risk (i.e., the overlap between contributory negligence and assumption of the risk).

Requirements for Assignment of Contract

No formalities are needed for an assignment, but there must be a present intent to transfer the right immediately. No consideration is needed, but the lack of consideration would affect revocability of the assignment.

Deviations from child-support guidelines

In all jurisdictions, there is a rebuttable presumption that the amount calculated pursuant to the child-support guidelines is correct. 42 U.S.C. § 667. Deviations, however, are permitted as the circumstances warrant. If the court determines that the amount set forth under the guidelines should be deviated from, it must set forth specific findings explaining and supporting the deviation, including the amount that would have been awarded under the application of the guidelines. If a parent is unemployed or underemployed, the court may impute an income to calculate the child-support award. Conversely, if the parent(s) earn a significant income far exceeding the needs of the child, the court may modify the award to provide solely for the child's needs, but generously define the amount. Once a child-support award has been paid, the obligor is not permitted to monitor how the money is expended.

In Rem and Quasi-In-Rem Limitations

In an action to determine ownership of real or personal property (e.g., removal of a cloud on the title to the property) or to enforce a lien against real or personal property where the property is located within the district, the federal district court has personal jurisdiction over the claimants to the property. 28 U.S.C. § 1655; Rule 4(n)(1). In other in-rem or quasi-in-rem actions, jurisdiction can be obtained by a federal district court under the circumstances and in the manner provided by the law of the state in which the federal district court is located, but only if the federal district court, despite the existence of sufficient minimum contacts, cannot acquire personal jurisdiction over the defendant by service of process under the federal rule (Rule 4). As a consequence, quasi-in-rem jurisdiction is generally limited to exigent circumstances, such as where the defendant is a fugitive or the property is in imminent danger of disappearing. Rule 4(n)(2).

Option Contract for Property

In an option contract, one party acquires the right to purchase property, typically during a specific time period, in exchange for consideration.

Seller's Right to Price Under UCC

In certain circumstances, a seller may seek to recover the full contract price (or if a price has not been agreed upon, a reasonable price) plus any incidental damages. This remedy is analogous to the remedy of specific performance that the buyer has in limited circumstances.

Parental Consent generally

In certain circumstances, such as for medical procedures, parental consent must be obtained. This policy holds regardless of the parents' marital status. A doctor who performs surgery on a minor child without parental consent is liable in tort. There are some exceptions to this general rule, such as in the case of an emergency, when time is of the essence. Some states may permit an exception to the general rule of consent when the child is older or deemed mature, or when the medical concern is related to public health, such as the treatment of a venereal disease.

Damages for Construction Contracts

In construction contracts, the general measure of damages for a contractor's failure to begin or to complete the building or other structure is the difference between the contract price and the cost of construction by another builder, plus any progress payments made to the breaching builder and compensation for delay in completion of the construction. The general measure of damages for the owner's failure to pay the contract price, in whole or in part, is the profits that the builder would have earned, plus any costs incurred by the builder, less the amount of any payments made by the owner to the contractor and any materials purchased by the contractor that are used by the contractor on another job.

Parol Evidence under UCC

In contrast to the common law and Second Restatement parol evidence rules, the UCC rule is much more lenient. The UCC essentially presumes that a written contract is only a partial integration and allows any additional consistent terms unless a court concludes that the parties "certainly" would have included the term in the written contract. UCC § 2-202. Because that standard is difficult to establish, parties usually can bring in outside evidence.

Evidence considered for motion for summary judgment

In deciding a motion for summary judgment, the court must consider the materials cited by the parties—affidavits, documents, electronically stored information, pleadings, deposition transcripts, interrogatory answers, admissions, and stipulations filed by the party, even if not presented in a form that is admissible at trial, as long as the facts contained in the submissions are admissible at trial. Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). However, the court is not limited to these materials—it may also consider other materials in the record. Supporting and opposing affidavits must be made on personal knowledge, must set out facts that would be admissible in evidence, and must establish the affiant's competency to testify on the matters stated. An unsworn declaration under penalty of perjury will have the same force and effect as an affidavit if it meets the above requirements and is signed and dated by the person setting out the facts and states, "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature)." 28 U.S.C.S. § 1746. If a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in her own pleading, but she must set out specific facts showing a genuine dispute for trial. If the opposing party does not so respond, then summary judgment, if appropriate, will be entered against that party. Rule 56(e).

Federal Court Applying State Law

In determining a state's substantive law, the U.S. district court will be bound by the rulings of the state's highest court. If the state's highest court has not spoken on an issue, however, the federal court must try to determine how the state's highest court would rule on the issue, if it did consider it. To make this determination, the federal court will generally look to any lower state-court decisions that have considered the issue and will follow a lower court's view, unless it believes that the highest state court would not follow it. If no state court has considered the issue, then the federal court will have to determine how it believes the highest court in the state would rule if it looked at the issue today. Some states have procedures that allow the federal district court to certify a question of substantive law to the state supreme court for clarification. If, after the U.S. district court action has been completed, the state's highest court rules on an issue in a way that is different from the way the district court predicted, then a federal appeals court is bound by the state court's ruling. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538 (1941).

Future Advances priority

In determining the priority of a security interest that secures a future advance when there is a conflicting security interest in the same collateral, the first-to-file-or-perfect rule generally applies. Consequently, the time that an advance is made is usually not determinative of priority unless a financing statement was not filed with respect to the security interest and the advance, as value given, constitutes the final step for attachment and perfection of that interest. UCC §9-323, incl. cmt. 3.

Vested Right in Nonconforming Use with Zoning

In determining whether a property owner has acquired a vested right in the nonconforming use, most courts require that, at the time that the zoning ordinance takes effect, the property owner must, in good faith, have secured any necessary permit from the proper local authority (e.g., a building permit) and also have made substantial progress toward achieving the nonconforming use. In a few states, securing a permit by itself is sufficient.

Factors for Specific Performance

In determining whether the legal remedy is adequate, the court will consider a variety of factors, including the difficulty of proving damages with reasonable certainty, hardship to the defendant, balance of the equities, practicality of enforcement, and mutuality of the agreement.

Review of jury verdict

In determining whether to set aside a jury verdict, it is not sufficient that the verdict is against the weight of the evidence. Lavender v. Kurn, 327 U.S. 645 (1946). Some appellate courts refuse to set aside a jury verdict if there is substantial evidence supporting the verdict. Other courts require only sufficient evidence to sustain a jury verdict. Still others uphold a jury verdict unless there is no evidence to support the verdict.

Remedying Venue in Diversity Cases

In diversity cases transferred for improper venue, the district court to which the case is transferred applies the choice-of-law rules of the state in which it is located, as opposed to the state law of the district court that transferred the case.

Comparative Fault - Multiple Defendants

In either a pure comparative-fault or a modified comparative-fault jurisdiction, the plaintiff's degree of negligence is compared to the total negligence of all defendants combined.

"Realignment" in Diversity Jurisdiction

In evaluating whether true diversity exists, courts will look beyond the face of the pleadings to determine the "ultimate interests." If necessary, they will "arrange the parties according to their sides in the dispute." Thus, courts will not allow, for example, a party that is actually aligned with the plaintiff to be named as a defendant in order to present a false diversity. City of Dawson v. Columbia Ave. Sav. Fund, Safe Deposit, Title, & Trust Co., 197 U.S. 178 (1905).

Strict Product Liability - "state of the art"

In failure-to-warn and design-defect cases, the manufacturer may introduce as evidence the level of relevant scientific, technological, and safety knowledge existing and reasonably feasible at the time of the product's distribution. In most jurisdictions, compliance with this "state of the art" standard does not bar recovery against the manufacturer as a matter of law. However, many states have enacted statutes providing that compliance with the state-of-the-art standard is a total bar to recovery.

Remedying Venue in Federal Question

In federal question cases transferred for improper venue, the district court to which the case is transferred applies the interpretation of federal law by its Court of Appeals.

Negligence - Duty

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant's failure to act as a reasonable person of ordinary prudence under the circumstances. Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable.

Abstention from subject matter jurisdiction

In general, a federal court with subject matter jurisdiction is required to adjudicate the controversy despite the pendency of a similar action in a state court. A federal court may abstain from hearing a case or stay the matter pending the outcome of the state court action under the following limited circumstances: i) Resolution of a state law issue by the state court would eliminate the need for the federal court to decide a federal constitutional issue, R.R. Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941); ii) Avoidance of federal involvement with a complex state regulatory scheme or matter of great importance to the state, Burford v. Sun Oil Co., 319 U.S. 315 (1943); Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959); iii) The state action involves punishment of an individual for criminal activity or for contempt of court, or the imposition of a civil fine, and the federal court is asked to enjoin such activity, Younger v. Harris, 401 U.S. 37 (1971); and iv) Parallel proceedings that go beyond mere waste of judicial resources, such as when there is a federal policy of unitary adjudication of the issues, Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). There are limited circumstances when federal intervention is appropriate. If a plaintiff can demonstrate unusual circumstances calling for federal equitable relief, significant and dire irreparable injury, or prosecutorial bad faith, then a federal court may intercede.

Defenses of Mortgage Transferor

In general, a mortgagor who becomes a surety with respect to a mortgage obligation upon the transfer of the property to a person who assumes that obligation is entitled to the benefit of any favorable modification of the obligation, such as a lower interest rate or an extension of time to pay. The mortgagor-transferor may raise such a modification as a defense to the mortgagee's attempt to enforce the original terms of the mortgage obligation. However, the mortgagor?transferor is not entitled to raise defenses that are personal to the transferee, such as lack of capacity or a discharge in bankruptcy. Restatement (Third) of Property: Mortgages § 5.3, cmt. i.

Timing of Reply

In general, a party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. Rule12(a)(1)(C).

Amount In Controversy Standard of Proof

In general, a plaintiff's good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to a legal certainty that the plaintiff cannot recover the amount alleged. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938). If an alleged amount in controversy is challenged, then the burden is on the party asserting jurisdiction merely to show that it is not a legal certainty that the claim involves less than the statutory amount.

Property Owner's Associations

In general, a property owners' association is a common-interest ownership community only if the property owners are required as a consequence of their property ownership to belong to the association and pay dues to it. A real estate development in which property owners are required to pay for the use of, or to contribute to the maintenance of, property held in common by the individual owners is also a common-interest ownership community, even though membership in the association itself is optional. Restatement (Third) of Property: Servitudes § 6.2, cmt. c.

Required Removal of Fixtures

In general, a tenant who has made permitted alterations in the premises, including the installation of fixtures, does not have to restore the property to its original condition unless the lease specifically requires such action. Therefore, unless the lease provides otherwise, the tenant cannot be required to remove fixtures that do not constitute a breach of the lease. 52A C.J.S. Landlord and Tenant § 884 (2005); see Wilder Cos., Ltd. v. Cal. Pizza Kitchen, Inc., 32 Mass. L. Rep. 505 (2015).

Class action and judgment

In general, a valid judgment binds all members of the class. In a class action certified under Rule 23(b)(3), a valid judgment in a class action, of course, does not bind those class members who elected to opt out of the lawsuit, but a class member who does not opt out is bound by the judgment, even when that class member did not have minimum contacts with the forum state. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).

Implied Authority by Delegation

In general, agents are prohibited from delegating either express or implied authority to a third person without the principal's express authorization. The rationale for the rule is that the agency relationship is consensual, and the principal has not agreed to a third party acting in the place of the known agent. Yet, in certain cases, a principal may be shown to have granted implied authority to the agent to delegate his duties to a third person or subagent. (1) Mechanical, (2) situational or circumstantial, (3) custom, (4) impossibility.

Intended Beneficiary

In general, an intended beneficiary is one to whom the promise of the performance will satisfy the obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance. In addition, recognition of the right to performance in the beneficiary must effectuate the intent of the parties to the contract. Restatement (Second) of Contracts § 302(1).

Contract Revocation Generally

In general, an offer can be revoked by the offeror at any time prior to acceptance. An offer is revoked when the offeror makes a manifestation of an intention not to enter into the proposed contract. Restatement (Second) of Contracts § 42. A revocation may be made in any reasonable manner and by any reasonable means, and it is not effective until communicated. A revocation sent by mail is not effective until received.

Appeal of summary judgment motion

In general, an order denying summary judgment is not subject to immediate appeal. A grant of full summary judgment is a final disposition on the merits and is subject to appeal. However, if a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), then the court may (i) give an opportunity to properly support or address the fact, (ii)consider the fact undisputed for the purposes of the motion, (iii) grant summary judgment if the motion and supporting materials show that the movant is entitled to it, or (iv) issue any other appropriate order. Rule 56(e).

Review of legal rulings de novo

In general, appellate review of legal rulings is de novo. While an appellate court relies on the record created in trial court and does not entertain the admission of additional evidence, the appellate court reviews the evidence and law without deference to the trial court's legal rulings. Thus, the appellate court may reach its own independent conclusions as to the applicable law.

Class Actions and Amount in Controversy

In general, if any member of the putative class does not have a claim that meets the statutory jurisdictional amount, then the amount-in-controversy requirement will not be met. Snyder v. Harris, 394 U.S. 332 (1969); Zahn v. International Paper, 414 U.S. 291 (1973). Note, though, that the Class Action Fairness Act of 2005 amended § 1332(d) to permit aggregation of claims in certain class actions. Additionally, when at least one representative plaintiff in a putative class action has a claim that meets the statutory jurisdictional amount, other persons with claims that do not meet the jurisdictional amount can be made part of the class under the doctrine of supplemental jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546 (2005).

Exculpatory Clauses in Contracts

In general, parties can contract to disclaim liability for negligence. But courts will not enforce exculpatory provisions: (1) Disclaiming liability for reckless or wanton misconduct or gross negligence; (2) When there is a gross disparity of bargaining power between the parties; (3) When the party seeking to apply the exculpatory provision offers services of great importance to the public that are a practical necessity for some members of the public such as medical services; (4) If the exculpatory clause is subject to typical contractual defenses such as fraud or duress; or (5) When it is against public policy to enforce agreements that insulate people from the consequences of their own negligence. Some jurisdictions require that the contract explicitly state that claims "based on negligence" are disclaimed. Generally, common carriers, innkeepers, and employers cannot disclaim liability for negligence. State statutes often provide that certain additional businesses cannot disclaim liability for negligence. Many courts now hold that disclaimer of liability by contract negates the fact that the defendant owes a duty of care to the plaintiff in the first place. This causes the plaintiff's prima facie case for negligence to fail, rather than acting as an affirmative defense of assumption of the risk.

Modification of Spousal Maintenance generally

In general, spousal support may be modified, even when it has been deemed permanent. The party seeking modification typically has the burden of establishing a significant change in circumstances in the needs of the dependent spouse or financial abilities of the obligor that warrant the modification. As with child support, a party who willfully or voluntarily reduces her income will not receive a reduction in her support payments.

Deed Formation

In general, the giving of legal advice and counsel to others, as well as the preparation and approval of legal instruments such as deeds and mortgages for someone else, constitutes the practice of law. See, e.g., N.Y. Judiciary Law § 484; Countrywide Home Loans, Inc. v. Ky. Bar Ass'n, 113 S.W.3d 105, 112 (Ky. 2003). However, a non-attorney who is acting on his own behalf may select and draft a legal document. Wash. State Bar Assn. v. Great W. Union Fed. Sav. & Loan Assn., 586 P.2d 870 (Wash. 1978). (See III.A.1.c. "Preparation of the contract of sale," supra, regarding the completion of a standard form contract by a real estate agent or broker.)

Determining Removal Jurisdiction

In general, the right of removal is determined by the pleadings filed as of the time of the filing of the petition of removal. In diversity cases, however, diversity must exist at the time of filing the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed diversity jurisdiction. In other words, removal is permitted when a party who prevents diversity jurisdiction is dismissed from an action. The federal court to which the action is removed is not precluded from hearing and determining any claim in the action because the state court from which the action was removed did not have jurisdiction over that claim. § 1441(f).

Timeliness of notice of disposition of collateral

In general, the test for the timeliness of a notification of a disposition is reasonableness. The notification should be sent sufficiently far in advance of the disposition to allow the notified party to act on the notification. UCC § 9-612(a), incl. cmt. 2. In a transaction other than a consumer transaction, when a secured party sends a notification of disposition after default and at least 10 days before the earliest time for disposition set forth in the notification, the timeliness of the notice is reasonable, provided that the notice is sent in a commercially reasonable manner. UCC § 9-612(b), incl. cmt. 3.

Negligence - Affirmative Duty to Act

In general, there is no affirmative duty to act. However, a duty is imposed in the following situations.

Timing of Title Vesting when transfer of deed is conditional

In general, title to the property remains in the seller until the condition is satisfied. Once the condition is satisfied, title automatically vests in the buyer. The date of transfer can relate back to the date that the grantor deposited the deed in escrow when, before the condition is satisfied, the grantor dies, the grantor becomes incapacitated or marries, or the grantee dies.

General Venue Rule

In general, venue in a federal civil action is proper in only one of the following judicial districts: i) A judicial district in which any defendant resides, if all defendants reside in the same state in which the district is located; or ii) A judicial district in which a "substantial part of the events or omissions" on which the claim is based occurred, or where a "substantial part of the property" that is the subject of the action is located. If there is otherwise no judicial district in which the action may be brought, then the "fall back" alternative is that venue is proper in a judicial district in which any defendant is subject to personal jurisdiction with respect to such action. § 1391(b).

Pure Comparative Negligence

In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff's contributory negligence is not a complete bar to recovery. Instead, the plaintiff's full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff's fault bears to the total harm (e.g., if the plaintiff's full damages are $100,000, the plaintiff is 80% at fault, and the defendant is 20% at fault, then the plaintiff will recover $20,000).

Acceptance of collateral

In lieu of disposing of the collateral, the secured party may usually accept the collateral in full or partial satisfaction of the obligation secured by the collateral. UCC §§ 9-620; 9-622. A secured party may accept collateral in full satisfaction of an obligation secured by the collateral when: i) The debtor consents, after default, to the acceptance in an authenticated record; or ii) The debtor does not object to the secured party's proposal to accept the collateral within 20 days after the proposal is sent.

Deed in lieu of foreclosure

In lieu of foreclosure, a mortgagor may convey all interest in the property to the mortgagee ("deed in lieu of foreclosure"). This permits the mortgagee to take immediate possession of the property without any further legal formalities, but it requires the consent of both the mortgagor and the mortgagee.

Real Estate Broker

In many instances, the sale of real property involves a real estate broker. The rights and duties of the broker are generally governed by contract, although state law requires a person to be licensed in order to serve as a broker and often imposes various requirements. All states also recognize and license real estate salespersons (typically referred to as "real estate agents") who generally are required to serve as a subagent of a real estate broker. Generally, when a person who is required to be licensed fails to obtain a license, the person is not entitled to a commission on the sale of the real property.

Best-Interests-of-the-Child Parents' Sexual Conduct

In many, but not all, jurisdictions, courts may not consider the parents' prior sexual conduct, including gay or lesbian relationships, in making a custody decision, unless it can be determined that the conduct of the parent has or will have a negative effect on the child.

Res Ipsa Loquitur - Medical Malpractice

In medical malpractice cases when several physicians, nurses, and other medical personnel have access to the plaintiff during surgery, a small number of jurisdictions apply res ipsa loquitur, finding that each defendant has breached a duty of care unless he can exonerate himself. In the absence of such exonerating evidence, the courts hold all defendants jointly and severally liable. See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944).

Reasonably Prudent Person

In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant is acting in good faith or using her best efforts. A defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

Public Nuisance - Laws

In most instances, state statutes or local ordinances specifically declare something to be a public nuisance. Things declared to be a public nuisance by state statutes are far more varied than those described above, including such things as running a house of ill repute or a disorderly tavern, gambling on Sundays, or growing certain types of thorny bushes

Negligence - Automobile Drivers

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). However, a minority of jurisdictions distinguish between the two with "guest statutes," which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Determining Contribution in Tort Liability

In most jurisdictions, each party's fair share is determined by comparing how far each tortfeasor departed from the standard of reasonable care. Generally, a party who has committed an intentional tort may not seek contribution from another tortfeasor.

Spousal maintenance - remarriage

In most jurisdictions, if the receiving spouse remarries, then spousal support may be terminated. A subsequent annulment of this marriage generally does not revive a spousal-support obligation from a former marriage, even though an annulment usually results in a marriage being treated as invalid as of the date of its inception. The marriage of the obligor spouse can constitute a change in circumstances that justifies the reduction in spousal support to the receiving spouse.

Child Support - Medical Insurance

In most jurisdictions, the cost of providing medical insurance for the child is included in the child-support award, if either of the parents has access to insurance. If there is no insurance available, then the court may include provisions for the procurement and payment of insurance after consideration of the medical needs of the child, the cost of the coverage, and the availability of a plan to meet the child's needs. Any premiums associated with the medical coverage shall be subtracted from the net income of the parent who is responsible for the payment.

Best-Interests-of-the-child Race or religion

In most jurisdictions, the courts cannot use race or religion as factors in determining custody.

Domestic Animal - Landlord's Liability

In most jurisdictions, the landlord is not liable for harms caused by animals owned by his tenants. The landlord lacks the required element of control over the animal. Some jurisdictions impose liability on the landlord based on negligence if the landlord is aware of the dangerous propensities of the dog or other animal.

Termination of Parental Rights - consent of adoptee

In most jurisdictions, the prospective adoptee must consent to his adoption if he is over 14 years of age; some jurisdictions lower the age to 12 years.

Strict Product Liability - Comparative Fault

In most states and under the Third Restatement, the plaintiff's own negligence will reduce his recovery in a strict-products-liability action in the same manner as in a negligence action. In those jurisdictions, a plaintiff's conduct that amounts to an "assumption of the risk" will be treated as comparative negligence in order to reduce but not eliminate recovery. In some comparative-fault jurisdictions, the plaintiff's recovery in strict products liability is not reduced by the percentage that the plaintiff's fault contributed to causing her injury.

Transfer by a single joint tenant

In most states, a joint tenant may effect a severance by executing a contract to convey his property interest.

Landlord's Duty to Give Possession

In most states, a tenant is relieved of the obligation to pay rent if the landlord fails to deliver actual physical possession of the leasehold premises. The minority rule requires only that the landlord deliver legal possession.

Marital Property

In most states, all property acquired during the marriage is marital property and subject to equitable distribution. Some states subject all property owned by either spouse to equitable distribution (i.e., the "hotchpot" approach). The definition of marital property is typically broadly applied and includes retirement benefits and, under some circumstances, equity in nonmarital property. Classification of the appreciation in nonmarital property will typically depend on whether it remains separate property and if the appreciation can be attributable to spousal labor. Title to the property is immaterial. If a party claims that an asset is nonmarital and not subject to equitable distribution, then the burden is placed on that party to prove the assertion.

Marital Property - post-separation

In most states, property acquired by one spouse until a divorce is granted can be marital property. Some states treat property acquired by a spouse after permanently separating from the other spouse as separate property. Still other states draw the line between marital and separate property on the date that the divorce action is filed.

Res Ipsa Loquitur - Products Liability

In negligence cases involving products, even if the product passes through many hands—those of the manufacturer, the distributor, the retail store, and the consumer/user—if the manufacturer wrapped the package or it is clear that any negligence took place during the production process, many courts ignore the exclusivity requirement.

In Personam Jurisdiction

In personam jurisdiction is the power that a court has over an individual party. It is required whenever a judgment is sought that would impose an obligation on a defendant personally. When such personal jurisdiction exists, the court has the authority to issue a judgment against the party personally, which can be satisfied by seizure of all the party's assets. Such a judgment is entitled to full faith and credit in other states.

In Rem Jurisdiction

In rem jurisdiction is the authority of a court to determine issues concerning rights in property, either real or personal. The court generally determines title to the property, and such determination is conclusive as against all potential claimants. Often, no parties are named, and the case is known by the name of the property at issue. Examples of in rem proceedings include forfeiture and eminent domain actions initiated by the government as well as quiet title actions, usually initiated by a private party. In an in rem action, the court can extinguish interests in the property of persons who are outside of the forum or who are unknown.

Court consideration of Rule 12(b)(6) motion

In ruling on a motion to dismiss under Rule 12(b)(6), the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. If a matter outside the pleadings, such as an affidavit, is presented to the court and is not excluded by the court in its review, then the motion must be treated as a motion for summary judgment under Rule 56, and all parties must be given an opportunity to present all material information for the court's consideration. Rule 12(d).

Negligence - Recreational Land Use

In some jurisdictions, a land possessor who opens his land to the public for recreational purposes is not liable for injuries sustained by recreational land users so long as he does not charge a fee for the use of his land, unless the landowner acts willfully and maliciously or, in some jurisdictions, with gross negligence.

Libel per quod

In some jurisdictions, under the doctrine of libel per quod, if the nature of the defamatory statement requires proof of extrinsic facts to show that the statement is defamatory, then the plaintiff must prove either special damages or that the statement fits into one of the four categories of statements that satisfy the requirements of slander per se.

In Loco Parentis Visitation and Parenting Time

In some situations, third parties, such as grandparents, stepparents, or gay or lesbian nonbiological co-parents, may seek parenting time. Visitation is sometimes granted to stepparents and same-sex nonbiological co-parents, but it is typically limited to those cases in which they have acted in loco parentis with the child prior to the divorce. Absent such a relationship, there are no protected rights of a stepparent or nonbiological co-parent to have ongoing contact with the child(ren) after divorce or death of the natural parent.

Transfer by all joint tenants

In some states, a contract to convey property held in a joint tenancy that is executed by all of the joint tenants does not effect a severance. Severance occurs only upon the transfer of the property. In other states, severance occurs upon the execution of a contract to convey by all of the joint tenants.

Deed of Trust

In some states, a deed of trust (or trust deed) is used in place of a mortgage. The borrower (landowner) delivers title to real property to a third-party trustee (typically the lender's lawyer) as security for the payment of the note to the beneficiary (lender), with the condition that the trustee re-conveys the title to the borrower upon payment of the note. If the borrower fails to pay the note (defaults), then the beneficiary instructs the trustee to sell the land to repay the note. When the property is transferred by trustee in violation of the trust, an equitable lien may be imposed on the transferred property in favor of the lender. For most purposes, a deed of trust is treated the same as a mortgage. However, a primary reason for using a deed of trust instead of a mortgage is that while, upon default, a mortgagee-lender who conducts a non-judicial foreclosure sale cannot purchase the property at the sale, a beneficiary?lender of a deed of trust can purchase the property at a similar sale held by the trustee.

Good workmanship and habitability of new homes

In some states, the warranty parallels the warranty of merchantability given by a merchant of goods under Article 2 of the Uniform Commercial Code. Under this type of warranty, the seller warrants that he used adequate materials and good workmanship in working on the residence. The implied warranty generally covers latent construction defects (i.e., defects that cannot be discovered by reasonable observation or inspection), such as a defective electrical, plumbing, or mechanical system, or a leaky roof or drainage problem that does not manifest itself until after the sale. Although the buyer has a duty to conduct a reasonable inspection of the residence for patent defects, the buyer is not required to employ an expert home inspector. In other states, the warranty parallels the warranty of habitability given by a landlord to a residential tenant. Under this type of warranty, the focus is on whether the defect significantly affects the ability of the buyer to live in the residence. Some states recognize both prongs of this warranty.

Life Estate and Dower and Curtesy

In states that continue dower and curtesy, a conveyance from the husband to a bona fide purchaser without the wife's joining in the conveyance does not defeat dower. Similarly, a wife's dower rights are not defeated by the husband's creditors.

Customary Implied Authority

In the absence of instructions to the contrary, an agent has implied authority to act within accepted business customs or general trade usage within an industry. The agent must be aware of the normal business customs or usage before she acts.

Perishability in Rejection of nonconforming goods under UCC

In the absence of other instructions from the seller, a merchant buyer may store nonperishable goods at the seller's expense, reship them to the seller, or sell them for the seller's account. If the goods are perishable and the seller has no local agent to whom they can be returned, in the absence of other instructions from the seller, a merchant buyer is required to sell the goods on the seller's behalf. UCC § 2-603.

Intentional Tort Defense - Misdemeanor

In the case of a misdemeanor, a police officer may make an arrest if the misdemeanor is being committed or reasonably appears about to be committed in the presence of the officer. When the person effecting the arrest is a private citizen, the misdemeanor must also be a breach of the peace.

Intentional Tort Defense - Combat

In the case of boxing or prizefighting, most courts hold that the plaintiff consents to intentional torts when he engages in the fighting, and he is therefore precluded from recovering for any injuries sustained. In the case of street fighting and other illegal activities, the courts are divided. A majority holds that consent to such acts is not a defense because one cannot consent to a criminal act. The Second Restatement and a significant minority of courts now hold to the contrary, however. Restatement (Second) of Torts § 60 (1965).

Negligence - Household Items Damage

In the case of household items, such as clothing and appliances, courts often hold that replacement value is the measure of damages.

Negligence - Cost of Repairs

In the case of tortious harm to personal property, most courts also allow the cost of repairs as an alternative measure of damages, provided that the cost of repairs does not exceed the value of the property.

Fee simple subject to a condition subsequent - right to terminate

In the conveyance, the grantor must explicitly retain the right to terminate the fee simple subject to a condition subsequent (known as the "right of entry," "right of reentry," or "power of termination"). In most states, this right is devisable and descendible, but it cannot be transferred during the owner's lifetime. The owner may waive this right, but the mere failure to assert it does not constitute a waiver.

Indefinite Automatic Perfection by Proceeds

In the following circumstances, a security interest in proceeds may continue to be perfected beyond the 20-day period: (1) perfection pursuant to financing statement, (2) cash proceeds, (3) same office.

Intentional Interference with Contract - Relationship

In the majority of states, the contract in question must be valid and not terminable at will. However, a minority of states will allow the cause of action to be brought for interference with a contract that is terminable at will. A contract that is voidable by one of the parties to the contract, such as due to a violation of the Statute of Frauds, may be the subject of tortious interference unless the party elects to void the contract.

Strict Foreclosure

In very few states is the strict foreclosure method the primary method of foreclosure, although other states permit its use in certain situations. Under this method, the mortgagee brings an equity action for a court order requiring the mortgagor to pay the mortgage obligation within a specified time period. If the mortgagor does not pay within the time period, then the mortgagor forfeits his equity of redemption, and the mortgagee takes title to the property.

Marriage and incest

Incest is marriage or sexual relations between people related within the prohibited degree of kinship. All states restrict marriages by consanguinity (blood relationships), and nearly half bar marriages between first cousins. Typically, most consanguinity statutes also prohibit marriages between relatives of half blood, and many prohibit it when the relationship is by adoption. But see Bagnardi v. Harnett, 366 N.Y.S.2d 89 (N.Y. 1975) (marriage between adoptive father and daughter permissible); Israel v. Allen, 577 P.2d 762 (Colo. 1978) (unconstitutional to prohibit adoptive siblings from marrying).

Incidental Damages

Incidental damages may be awarded to the nonbreaching party as compensation for commercially reasonable expenses incurred as a result of the other party's breach. In the sale of goods, such damages may include the cost of inspecting, transporting, caring for, or maintaining custody over goods.

Strict Product Liability - Chain of Distribution

Included as a seller are the manufacturer of the product, its distributor, and its retail seller.

Vicarious Liability Indemnification

Indemnification generally applies when one tortfeasor is vicariously liable for the other's wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm (e.g., an employer who pays a judgment for the tort of an employee because of the employer's vicarious liability).

Divorce - Indignity

Indignity grounds arise when one spouse exhibits negative behavior toward the other that renders that spouse's condition intolerable and life burdensome. Indignity can include: vulgarity, unmerited reproach, habitual laziness, neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, habitual humiliating treatment, repeated accusations of infidelity, sexually deviant behavior, serious temper tantrums, or violence. Although it is still available in some states, indignity is no longer recognized in the majority of states.

Infancy Doctrine for contracts generally

Infants (in most states, individuals who are under the age of 18) do not have the capacity to contract. When a contract is made by an infant, it is voidable by the infant but not by the other party. This means that the infant may either disaffirm (void) the contract and avoid any liability under it or choose to hold the adult party to the contract. The disaffirmance must be effectuated either before the infant reaches the age of majority or within a reasonable time thereafter. If the contract is not disaffirmed within a reasonable time after the infant reaches the age of majority, then the infant will be held to have ratified the contract as an adult. The infant must restore any benefits received under the contract, if possible. Restatement (Second) of Contracts § 14.

Discovery scope relevance

Information within the scope of discovery need not be admissible in evidence to be discoverable. The test is whether the information sought is relevant to any party's claim or defense.

Divorce - Insanity

Insanity is a valid defense when one spouse does not know the difference between right and wrong or lacks the ability to understand that an act is wrongful.

Restitutionary Recovery by nonbreaching Party

Instead of seeking to enforce a contract, a nonbreaching party may seek restitution for any benefit conferred on the breaching party by way of part performance or reliance. Restitution is available whether the breach is by nonperformance or by repudiation, but in the case of nonperformance, restitution is available only if the breach gives rise to a claim for damages for total, not partial, breach. Restatement (Second) of Contracts § 373(1).

Divorce - Institutionalization

Institutionalization is grounds for divorce if a spouse's insanity or serious mental condition results in her being confined to a mental institution for a specified period of time prior to the commencement of the divorce, and there is no reasonable prospect of discharge or rehabilitation.

Employer Liability for Intentional Torts

Intentional torts are not automatically excluded from the scope of employment. They may fall within the scope of employment when (1)the conduct is within the space and time limits of the employment; (2)the agent was motivated in part to act for the employer's benefit; and (3) the act was the kind of act that the employee was hired to perform.

Visitation and Interference

Interference or refusal to comply with a visitation order may be remedied by a change in custody or by contempt proceedings.

Interpleader

Interpleader allows a person holding property (traditionally known as the "stakeholder") to force all potential claimants to the property into a single lawsuit to determine who has a right to the property.

Reasonably Prudent Person - Intoxication

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Intra-family Tort Immunity generally

Intra-family immunity applies only to personal injuries, not to property damage.

In Personam Jurisdiction and Websites

It is generally accepted that merely having a website does not subject a defendant to process everywhere that the site can be viewed. Most courts have followed the approach of Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), which bases jurisdiction over a nonresident's website on the degree of interactivity between the website and the forum. The court set forth a sliding scale approach with regard to the interactivity of websites, ranging from passive sites to those that are integral to the defendant's business. Merely making a website accessible to the public and posting information is generally considered passive on the sliding scale and should not result in personal jurisdiction. Websites that are integral to a defendant's business, however, are on the other end of the sliding scale. When a website's purpose is to assist in conducting direct business transactions, courts are more likely to find minimum contacts with a state and assert personal jurisdiction.

Private Nuisance - Coming to the Nuisance

It is generally not a defense that the plaintiff "came to the nuisance" by purchasing property in the vicinity of the defendant's premises with knowledge of the nuisance operated by the defendant. However, the fact that the plaintiff moved to the nuisance is not irrelevant; it may be considered by the jury in determining whether the plaintiff can recover for the nuisance. In other words, the plaintiff's coming to the nuisance does not entitle the defendant to judgment as a matter of law, but it is evidence that the jury may consider. Conversely, ownership of land prior to the defendant's entry into the neighborhood will not, by itself, make the defendant's action a nuisance. The test is whether the defendant's action is unreasonable.

Classification of Real Property Interests

It is important to classify the various interests in a disposition clause in order (i.e., from left to right) because the characterization of the first interest usually determines the characterizations of the following interests.

False Imprisonment - Damages

It is not necessary to prove actual damages (except when the plaintiff is unaware of the confinement). Punitive damages may be imposed in appropriate cases.

Imposter Agent

It is not uncommon for an individual purporting to be an agent at the time of his acts to have no agency relationship or authority delegated by a principal. This person is called an "actor" or "imposter," and a principal may be held liable for the imposter's acts when the principal negligently allows an imposter to have the appearance of actual authority to act on the principal's behalf.

Assault - "mere words"

It is sometimes said that "mere words alone do not constitute an assault." However, words coupled with conduct or other circumstances may be sufficient. If the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.

Joinder and Venue

Joinder under Rule 20 also is subject to any applicable venue requirements.

Joint Child Custody

Joint custody generally requires that the parents are both willing and able to cooperate with respect to the well-being of the child. Usually, joint custody is not imposed over the objections of one parent, but, even when it is, the arrangement must meet the best-interests-of-the-child standard. Under a typical joint legal custody arrangement, neither parent has a superior right to make major decisions; instead, joint custody arrangements typically spell out a procedure for resolving conflicts. Joint legal custody is the outcome in the majority of cases. In fact, many jurisdictions have a statutory presumption in its favor. Joint physical custody does not necessarily require a 50-50 time-sharing arrangement. It encompasses any situation in which the child maintains a residence at the home of each parent and spends a significant amount of time with each parent.

Judicial notice of fact

Judicial notice is the court's acceptance of a fact as true without requiring formal proof. The Federal Rules only address judicial notice of adjudicative facts, which are the facts of the case at hand—those that relate to the parties and their activities, and that typically are decided by the jury. The Federal Rules do not apply to judicial notice of legislative facts, which are policy facts related to legal reasoning and the lawmaking process. Fed. R. Evid. 201.

Marital Property - Accumulated sick days or vacation

Jurisdictions are split on the issue of whether vacation and sick days are marital property. Courts have held the following: (1) accrued vacation and sick days are marital property subject to division at the time of dissolution; (2) accrued vacation and sick days are marital property but are subject to distribution when received, as opposed to the time of dissolution; and (3) accrued vacation and sick days are not marital property. Presby v. Presby, 2004 Ohio 3050 (Ohio Ct. App. 2004) (accumulated days that can be cashed out are considered marital property to be distributed at the time of dissolution); Ryan v. Ryan, 261 N.J. Super 689 (1992) (when payment for the unused accumulated days was received at separation, it constituted marital property if the majority of the days were accrued during the marriage).

Transfer of a mortgage without note

Jurisdictions are split with regard to the effect of transferring a mortgage without the note. Because the note is the principal evidence of the debt, many states treat a transfer of the mortgage alone as void. Other jurisdictions, however, consider the note and the mortgage something of a single entity. Thus, they generally treat the note as having automatically been transferred along with the mortgage, unless expressly stated to the contrary.

Marital property - personal-injury

Jurisdictions differ on the treatment of proceeds from personal-injury claims and worker's compensation claims. There are two basic approaches: (1) Marital property: In some jurisdictions, if the cause of action accrues between the date of the marriage and the final separation, the proceeds from the settlement or award are marital property. As long as the cause of action accrued during the marriage, the proceeds are marital property—even if the claim is paid after the final separation. (2) Separate and marital allocation: Other jurisdictions view the nature of the award to determine whether it is separate or marital property and allocate the award between nonmarital and marital property. Compensatory damages for pain, suffering, disability, and loss are considered the separate property of the injured spouse. Consortium losses are considered separate property of the non-injured spouse. Awards for lost wages, loss of earning capacity, and medical expenses are typically split. The court calculates the portion of the award attributable from the time of the accident until the termination of the marriage, and it treats that portion as marital property. Any part of the award attributable to loss of wages or medical expenses after the termination of the marriage is separate property.

Spousal Maintenance - retirement

Jurisdictions differ on whether an obligor can seek a reduction in spousal-support payments upon retirement. Some jurisdictions hold that the parties should have addressed the issue during the divorce proceedings and deny modification, while other jurisdictions find that the dependent spouse cannot expect to receive the same level of support after the supporting spouse retires.

Common-Law Marriage - Intent

Jurisdictions vary on the proof necessary to establish the requisite elements for a common-law marriage. See, e.g., Buford v. Buford, 874 So.2d 562 (Ala. 2004) (clear and convincing evidence); Callen v. Callen, 620 S.E.2d 59 (S.C. 2005) (preponderance of the evidence). The parties must produce evidence that they intended to enter into the marriage, and this must be evidenced by words in the present tense made for the purpose of establishing a valid legal marital relationship. Words in the future tense that indicate the parties agree to get married at a later date are not valid to show intent. In the event that the parties are unable to show evidence of their intent to marry in present-tense words, the court may look to cohabitation or reputation to determine if the couple holds or held themselves out as married. The courts, however, have consistently held that cohabitation alone does not support a common-law marriage. In re Thomas' Estate, 367 N.Y.S.2d 182 (N.Y. Sur. 1975).

Mortgagor Statutory right of redemption

Many states permit the mortgagor to reclaim the property after a foreclosure sale. In these jurisdictions, during a fixed period of time (typically between three months and two years), the mortgagor has the right to compensate the party who purchased the property at the foreclosure sale and reclaim the property.

Equitable Distribution of Property in an Annulment

Just because a marriage is terminated by annulment rather than divorce does not mean that parties to annulled marriages have no rights. The party seeking the annulment still has a right to request an equitable distribution of property and, in some cases, spousal support. That party may also seek child support, custody, attorney's fees, and other costs related to the dissolution of the marriage. Many jurisdictions have statutorily provided courts with the ability to award spousal support. In states without this statute, courts will not award spousal support. However, many of these states allow temporary spousal support during the pendency of the suit. Also, most courts will not reinstate spousal support from a previous marriage.

Divorce - Justification

Justification grounds may be established if one party left the home because of the other's misconduct. This is a defense to desertion.

Negligence - Undiscovered Trespassers

Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.

Negligence - Discovered Trespassers

Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm. Land possessors also have a duty to use reasonable care while conducting activities on their land, as well as to control the activities of third parties on their property. When a land possessor should reasonably know that trespassers are consistently entering his land (e.g., frequent trespassers using a footpath to cut across the corner of the property), the possessor owes a duty to the anticipated trespasser, regardless of the land possessor's actual knowledge.

Defamatory Language

Language that harms a person's reputation by diminishing respect, esteem, or goodwill toward the plaintiff, or deterring others from associating with the plaintiff, is defamatory. The plaintiff may introduce extrinsic facts to establish defamation by innuendo. An opinion is actionable if the defendant implies that there is a factual basis for that opinion.

Legal Child Custody

Legal custody is the right of a parent to make major decisions, as contrasted with everyday decisions, regarding the minor child. Typically, areas of health, education, and religion are encompassed.

Survival Action and Intangible Interests

Most states do not allow survival of tort actions involving intangible personal interests (such as defamation, malicious prosecution, or invasion of privacy) because they are considered too personal to survive the decedent's death.

Best-interest-of-the-child third-party rights

Legal parents are presumptively entitled to custody of their children in cases against third parties, including grandparents or stepparents, unless it can be established that the legal parent is unfit or that awarding custody to the legal parent would be detrimental to the child. If a natural parent has had little or no contact with a child, or if the child has lived with the third party for an extended period of time, then courts have employed the terms "parent by estoppel" and "de facto parent" to get around the presumption. A minority of the jurisdictions apply the best-interests-of-the-child standard in all custody cases, even those between a parent and a third party. However, such a standard may run afoul of a parent's constitutional rights. As with support obligations, custody rights may also turn on paternity issues.

Negligence - Wrongful Life

Most states do not permit actions by a child for "wrongful life" based on the failure to properly perform a contraceptive procedure or failure to diagnose a congenital defect, even if the child is born with a disability. A few states permit a "wrongful life" action, but they limit the child's recovery to special damages attributable to the disability.

Liability for Another's Alcohol Consumption - Social Host

Many states extend liability to a social host who serves intoxicating beverages (or substances) to a guest. Liability may be for the intoxicated person's injuries as well as those of a third party injured by the intoxicated person. Laws vary, and some are specifically directed to a person who serves alcohol (or makes it available) to a minor. Liability often extends to the intoxicated guest's torts that occur off premises (e.g., an intoxicated guest hits a pedestrian on the way home from the host's party).

Domestic Animal - Dog-Bite Statutes

Many states have enacted "dog-bite" statutes that hold owners of dogs or other domestic animals designated in the statute strictly liable for damages resulting from personal injuries.

Wild Animals - Trespassers

Licensees or invitees injured by a wild animal may recover in strict liability. A landowner is not strictly liable for injuries inflicted by his animals against a trespasser, except for injuries inflicted by a vicious watchdog. Remember, however, that a landowner may be liable on a negligence theory.

Time of Disposition of Collateral

Likewise, Article 9 does not mandate a specific time in which a disposition must occur. Instead, circumstances may dictate that the collateral is held due to the collapse of a market for the collateral, or the collateral that is comprised of a large number of a specific items be sold over time in parcels rather than immediately in bulk in order not to depress the market. UCC § 9-610(b), cmt. 3.

Limited Divorce

Limited divorce, known in some states as a "divorce from bed and board," is recognized in most jurisdictions, but rarely used. When used, it is often for religious or medical reasons, as the parties do not sever the marital tie and are still considered legally married. They are, however, permitted to live apart. As with an absolute divorce, the court will determine support and property division.

Spousal Maintenance - limited duration

Limited-duration alimony is established for a limited period of time. Unlike rehabilitative or reimbursement alimony (discussed below), its purpose is not to facilitate an increased earning capacity of the dependent spouse or to compensate a spouse who has sacrificed. Limited-duration alimony is typically awarded when the marriage was of short duration (making permanent alimony inappropriate), but there is still an economic need for support.

Liquidated Damages

Liquidated damages are damages to be recovered by one party without proof of actual loss in the event the other party breaches the contract. For a liquidated damages clause to be enforceable, the following two-prong test must be met at the time of contracting: (1) Theamount of liquidated damages was reasonable, bearing some relation to the damages that might be sustained; and (2) Actual damages were uncertain in amount and would be difficult to prove. Some jurisdictions, as well as the UCC and the Second Restatement, add a third prong to this test, and refuse to enforce a clause under which the liquidated damages are disproportionate to the actual damages incurred by a party. A few jurisdictions, as well as the Second Restatement, refuse to enforce a liquidated damages clause if the party does not suffer any damages as a consequence of the breach.

Real Estate Broker as Transaction Broker

Many states recognize a broker who does not serve as an agent of either the buyer or the seller, but instead offers to facilitate the sale by performing various functions, such as finding a lender who is willing to finance the transaction. This type of broker, who is generally referred to as a transaction broker, owes each party the duty to perform the broker's tasks with the necessary skill, care, and diligence and to deal fairly with each party, but does not owe either party a duty of loyalty.

Intrusion Upon Seclusion

Many states recognize an action for unreasonable intrusion upon the plaintiff's private affairs (also referred to as "intrusion upon seclusion"). The defendant's act of intruding, physically or otherwise, into the plaintiff's private affairs, solitude, or seclusion in a manner or to a degree objectionable to a reasonable person establishes liability. Eavesdropping on private conversations by electronic devices is considered an unreasonable intrusion. Photographing a person in a public place generally is not, unless the photograph is taken in a manner that reveals information about the person that the person expects to keep private even in a public place. Unlike the other forms of invasion of privacy, no publication is required to establish liability.

Liability for Another's Alcohol Consumption - Dram-Shop

Many states recognize, either by statute (a "dram-shop act") or by judicial decision, a cause of action against the seller of intoxicating beverages when a third party is subsequently injured due to the buyer's intoxication. Most states limit liability to situations in which the buyer was a minor or was intoxicated at the time of the sale. The states are divided as to whether the cause of action is grounded in negligence or strict liability.

Marriage generally

Marriage is a civil contract. Similar to most contracts, marriage involves parties who are legally capable of consent, the exchange of consideration in the form of mutual promises, and the imposition of rights and obligations. Conversely, unlike most contracts, a marriage contract cannot be modified or terminated without state intervention. A marriage is valid if there is a license and solemnization of the marriage. The two types of marriage are ceremonial and common-law.

Mediation - Divorce

Mediation is a frequently used, less expensive, and often more effective manner to resolve separation disputes. A neutral, court-approved mediator assists both parties with spousal- and child-support issues, as well as custody and visitation rights. Discussions during the mediation process and the written agreement derived from the discussions remain confidential, unless both parties agree to their disclosure. The court may approve the agreement and make it part of the final judgment. A mediator must conduct the mediation process in an impartial manner and disclose all and potential grounds of bias and conflicts of interest. A mediator must facilitate the participants' understanding of what mediation is. A mediator should recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly. Additionally, a mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.

Jury Misconduct

Misconduct can occur when a juror conceals facts relating to his qualifications or gives false testimony during voir dire. To obtain a new trial, a party must demonstrate that not only did the juror fail to answer honestly a material question on voir dire, but also show that a proper response would have provided a valid basis for a challenge for cause. McDonough Power Equip. v. Greenwood, 464 U.S. 548 (1984). If the juror violates the confidentiality of deliberations, is improperly influenced by non-jurors, or takes it upon himself to investigate facts outside of those presented at trial, then the court may dismiss the juror or, if necessary, order a new trial. Note that, while generally a juror may not impeach her own verdict, a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on a juror. Fed. R. Evid. 606(b).

Trespass to Chattel - Mistake

Mistake by the defendant about the legality of his actions is not a defense.

Real Estate Broker as Buyer's Agent

More recently, a real estate broker may serve as the buyer's agent. Typically, such an agent also receives a commission-based fee in an amount similar to the selling agent.

Private Sale of Foreclosed Real Property

More than half of the states also permit a mortgagee to foreclose on a mortgage through a privately conducted public sale of the mortgaged property when the mortgage contains a "power-of-sale" clause. This method is more common in states that recognize a deed of trust as the security instrument, and in such states, it is typically conducted by the trustee pursuant to the power-of-sale clause in the deed of trust. Typically, this method is faster and less expensive than a judicially supervised sale.

Warranties and Comparative Fault

Most comparative-fault jurisdictions reduce recovery based on warranty claims in the same way they would strict-products-liability claims.

Negligence - Traditional Breach of Duty

Most courts determine breach of the standard of care by comparing the defendant's conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard).

Negligence - Unforeseeable Intervening Causes

Most courts hold that an unforeseeable intervening cause is a superseding cause that therefore breaks the chain of causation between the defendant and the plaintiff. Examples of unforeseeable superseding causes include extraordinary acts of nature ("act of God") and criminal acts and/or intentional torts of third parties. Criminal acts of third parties are generally regarded as unforeseeable superseding causes and therefore break the chain of causation between the original defendant's negligence and the plaintiff's harm. However, if the duty breached by the defendant is one of failing to use reasonable care to protect the plaintiff and the plaintiff is harmed by a criminal act, then the original defendant remains liable.

Transfer of zoning nonconforming property

Most courts permit a property owner whose nonconforming use has been grandfathered to transfer not only the property itself, but also the right to use the property in the nonconforming manner. E.g., Budget Inn of Daphne, Inc. v. City of Daphne, 789 So. 2d 154 (Ala. 2000); Contra Vill. of Valatie v. Smith, 632 N.E.2d 1264 (N.Y. 1994).

Best-interest-of-the-child - Child's Preference

Most courts will consider the wishes of the child if the court can determine that the child has sufficient maturity to express a preference. Although age is not the sole factor in determining whether a child should be consulted, it is considered by the court. If children are consulted, then the court evaluates the reasons behind the preference.

Affirmative easements

Most easements are affirmative, giving the holder the right to make affirmative use of another's property (e.g., the right to cross another's land to access a highway).

Child Support - Income-shares model

Most jurisdictions have adopted an income-shares model, which operates on the theory that a child should receive the same proportion of parental income as if the parties continued to live together.

Modification of child support generally

Most jurisdictions permit an award of child support to be modified. Although the statutory language varies, in general, modifications are permissible when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation. Examples include a parent's change in occupation, remarriage of a parent who now has additional family obligations, increase in income, or a decrease in health. The burden to substantiate the change in circumstances is on the parent requesting the modification. Some jurisdictions, however, permit a modification to a support order after a certain passage of time, such as for a cost-of-living increase. Typically, a modification award is made retroactive to the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date generally may not be modified. 42 U.S.C. § 666(a)(9) (prohibiting retroactive modification of child support).

Voidable Marriage - Lack of Intent

Most jurisdictions permit annulment when the parties participated in the marriage ceremony as an act of jest or hilarity and do not have the requisite intention to be bound by the act. Most courts annulling marriages in such circumstances have determined that the interest of the public would not be served by requiring the parties to remain married. This also includes cases in which the parties, in advance, agree to only some, but not all, of the conventional aspects of marriage, including sexual and emotional fidelity, economic interdependence, and commitment to the relationship. Often seen in cases with immigration issues, this type of marriage is commonly referred to as a "limited purpose" marriage.

Grounds for Divorce

Most jurisdictions recognize both fault and no-fault grounds for divorce, although a substantial minority recognize no-fault grounds as the only basis for a divorce. The no-fault statutes eliminate fault and wrong as grounds for dissolution.

Putative Marriage Doctrine

Most jurisdictions, either by statute or common law, have adopted a version of the putative marriage doctrine (also known as "putative spouse doctrine"). See, e.g., Williams v. Williams, 97 P.3d 1124 (Nev. 2004); In re Marriage of Himes, 136 Wash. 2d 707 (1998); Colo., Rev. Stat. Ann. §14-2-111 (West 2003). The purpose of the doctrine is to protect a party who is unaware of an impediment to the marriage that makes it either void or voidable. Under the doctrine, a party who participated in a ceremonial marriage and believes in good faith that the marriage is valid may use a state's divorce provisions even if the marriage is later found void due to an impediment. UMDA § 209. Because a putative marriage is not technically a marriage, divorce is not needed to terminate a relationship. The doctrine, however, is normally invoked to provide equitable relief, including maintenance and property distribution.

Due-on-sale clause in mortgage

Most mortgages contain a due-on-sale clause. This clause provides that, upon the transfer of mortgaged property, the lender has the option to demand immediate payment of the full amount of the outstanding obligation, including interest, unless the lender has given its written permission for the transfer. In exchange for this permission, the lender may increase the interest rate on the loan or demand an "assumption fee." Due-on-sale clauses are federally enforceable. 12 USC § 1701j-3.

Strict Product Liability - Governmental Compliance

Most often, compliance with governmental safety standards is not conclusive evidence that the product is not defective. On the other hand, the jury can consider evidence introduced by the defendant that the product complied with governmental standards and also evidence offered by the plaintiff on the product's failure to comply with these standards in deciding whether the product is defective. However, if a product complies with federal safety statutes or regulations, a state tort claim act may be "preempted" if (i) Congress has explicitly so indicated, (ii)Congress has comprehensively regulated the field (i.e., "field preemption"), or (iii) it would be impossible for the manufacturer to comply with both the federal regulation and the requirements of state tort law.

Negligence - Causal Linkage

Most often, when the plaintiff proves that the defendant's tortious conduct was a but-for cause of his injury, he also implicitly proves that the defendant's conduct increased the probability that the plaintiff would be harmed. However, a defendant is not the proximate (legal) cause of harm when the tortious aspect of the defendant's conduct was of a type that does not increase the risk of that harm. In such cases, it is purely coincidental that the defendant's tortious conduct was the but-for cause of the plaintiff's injury.

NIED - Bystander Recovery

Most states allow a bystander plaintiff outside the zone of danger to recover for emotional distress if that plaintiff: (1) Is closely related to the person injured by the defendant; (2) Was present at the scene of the injury; and (3) Personally observed (or otherwise perceived) the injury. A majority of jurisdictions have not expanded liability to an unmarried cohabitant. However, some jurisdictions do allow engaged cohabitants to recover.

Solemnization

Most states do not prescribe a particular form of the marriage ceremony, but many require that any ceremony solemnizing the marriage be performed in front of at least two witnesses. Some states even allow for a proxy to stand in for one of the parties who cannot attend the ceremony as long as the party provides written authorization for the third person to act as a proxy. Additionally, in most jurisdictions, a judge, political official, or member of the clergy of a recognized religious organization must solemnize a marriage. The marriage license must be completed and filed with the appropriate government office.

Divorce - Equitable Distribution

Most states follow a system of equitable distribution. The objective of the equitable-distribution system is to order a fair distribution of all marital property, taking into consideration all of the circumstances between the parties. Unlike a community-property division, an equitable distribution is not necessarily an equal division of marital assets. There are, however, a few states that presume that an equitable division is an equal division, but permit deviation when necessary to achieve a more equitable result.

Divorce - Residency Requirement

Most states have a residency requirement that requires at least one of the parties to be a resident of the state. The required length of residency in a state before a party can file for divorce can turn on several factors, such as whether the couple was married in the state or the grounds for divorce happened in the state.

Prior marriage and good-faith belief in the death of a spouse

Most states have adopted what is known as an "Enoch Arden" statute in bigamy cases. In those jurisdictions, there is a defense to bigamy if the parties had a good-faith belief that the previous spouse was dead. The courts differ in the treatment of such marriages. Some jurisdictions require a divorce proceeding from the original spouse once the existence of the spouse is determined as a prerequisite to validating the later marriage.

Charitable Tort Immunity

Most states have either totally or partially eliminated the common-law rule of charitable immunity. Some states cap the amount of damages recoverable from a charitable institution.

Long-arm Statutes

Most states have enacted statutes that authorize personal jurisdiction over nonresidents who engage in some activity in the state or cause some action to occur within the state. In many states, the long-arm statute either directly authorizes or has been interpreted as authorizing jurisdiction to the extent permissible under the Due Process Clause. Thus, a federal court in those states need only determine whether the exercise of personal jurisdiction comports with due process. In some states, the long-arm statute only confers jurisdiction over specific activities undertaken in the state (e.g., owning property, committing a tort, or entering into a contract to supply goods or services in the state). In these states, the federal court must first determine whether the statutory requirements have been met, before determining whether the exercise of personal jurisdiction comports with the Due Process Clause.

State Government Tort Liability

Most states have waived sovereign immunity, at least partially, through legislation. Simultaneously, however, they have imposed limits on the amount of recovery and the circumstances under which the state can be held liable. They also have created procedural barriers to recover that do not exist in claims against private defendants. State tort claims acts vary greatly and therefore each act must be read carefully. Unless otherwise provided in the legislation, the same terms and conditions apply to the liability of state agencies—including prisons, hospitals, and educational institutions—as to the state itself.

Joint and Several Liability Limitations

Most states limit the application of joint and several liability (e.g., to a defendant more than 10% at fault), and a few have eliminated it altogether.

Voidable Marriage - Fraud, misrepresentation, duress, coercion, or force

Most states permit an annulment when the marriage was the result of a fraud that goes to the essence of a marriage. To annul a marriage based on fraud, it must be based on present—not future—facts. Most courts require that the parties immediately cease living together once the fraud is discovered. Concealment of defective morals, character, habits, fortune, and temper are typically insufficient grounds for an annulment. Jurisdictions have differed, however, on claims of misrepresentation when a woman has falsely claimed to be pregnant by a man, or on claims relating to a party's religious beliefs.

Time limit on nonconformity with zoning

Most states permit the imposition of a reasonable time limit on the existence of the nonconformity, after which the nonconformity must cease. This type of limitation is often characterized as an amortization ordinance because it is based in part on amortizing the property owner's investment over time. In assessing the reasonableness of an amortization period, both the burden placed on the property owner and the benefit to the public are taken into account. AVR, Inc. v. City of St. Louis Park, 585 N.W.2d 411 (Minn. Ct. App. 1998); Cf. Tahoe Reg'l Planning Agency v. King, 233 Cal. App. 3d 1365 (1991). The ordinance may set a specific time period for different classes of property or may establish criteria that a designated officer or entity is to apply on a case-by-case basis to determine the appropriate amortization period. Some states do not permit the imposition of a time limit on an existing nonconformity, finding it an impermissible taking of private property. Cf. Pa. Nw. Distribs. v. Zoning Hearing Bd., 526 Pa. 186 (1991).

Timing of Foreclosure on Mortgage

Most states permit the mortgagee to elect whether to bring an action to enforce the mortgage obligation (e.g., note) against the mortgagor-borrower personally or to initiate an action to foreclose on the mortgage. To the extent that the obligation is not satisfied by pursuing one type of action, the mortgagee may then be able to pursue the other enforcement action. A few states require that the action to foreclose on the mortgage and the action on the mortgage obligation be maintained as a single action.

Immunity from Personal Service

Most states provide immunity from service of process to nonresidents who enter the state for the purposes of attending a trial or deposition as a witness, party, or attorney. The theory behind such immunity is that it promotes full and active participation in the judicial system. The federal courts also generally provide immunity from federal suit under the same circumstances.

Preparation of Contract for Sale of Real Property by Broker

Most states recognize that a real estate agent or broker who is not an attorney may prepare a contract for the sale of real property. Many states limit the types of contracts that a real estate agent or broker may prepare to standard form contracts that can usually be completed by filling in blanks in the form. Commonwealth v. Jones & Robins, Inc., 41 S.E.2d 720 (Va. 1947)(preparation of simple contract of sale permitted); 4 Colo. Code Regs. § 725-1 E-4,33. In some states, the focus is on whether the agent or broker charges a separate fee for preparing the contract and whether it is incident to the agent's or broker's regular course of business. In some states, the real estate agent or broker is required to provide a written notice or require that the contract itself contain a contingency regarding attorney review or approval. In re Op. No. 26 of the Comm., 654 A.2d 1344 (N.J. 1995) (notice must spell out who the broker represents and give the parties three days in which to seek the advice of an attorney and to cancel the contract); Duncan & Hill Realty v. Dep't of State, 405 N.Y.S.2d 339 (App. Div. 1978); Opinion of N.Y.S. Attorney General 96-F11, dated November 14, 1996 (the contract must contain a clause that the contract is subject to the approval of the parties' attorneys).

Contracts under the Statute of Frauds

Most states require that the following five categories of contracts be evidenced by a writing: Marriage - A contract made upon consideration of marriage; Suretyship - A contract to answer for the debt or duty of another; One year - A contract that cannot be performed within one year from its making; UCC - Under the UCC, a contract for the sale of goods for a price of $500 or more; and Real property contract - A contract for the sale of an interest in real property.

Exceptions to marital property

Most states treat certain property as separate, rather than marital, property. Among the types of property treated as separate property are the following: (1) Property acquired before the marriage or property acquired in exchange for property acquired before the marriage; (2) Property excluded by the parties' valid agreement entered into before, during, or after the marriage; (3) Property acquired by gift or inheritance, or property acquired in exchange for such property, except when it is between spouses; (4) Property a party has sold, granted, conveyed, or otherwise disposed of in good faith and for value before the date of final separation; (5) Property to the extent that it has been mortgaged or otherwise encumbered in good faith for value before the date of final separation; and (6) Any award or settlement payment received for any cause of action or claim that accrued before the marriage, regardless of when the payment was received.

Risk of Loss and Equitable Conversion

Most states, following the logic of the doctrine of equitable conversion, place the risk of loss during the time between the execution of the contract and the closing on the buyer, regardless of whether the buyer takes possession of the property. An exception is recognized when the loss is attributable to the seller's intentional or negligent actions. The Uniform Vendor and Purchaser Risk Act (adopted by a minority of jurisdictions) keeps the risk of loss with the seller, unless and until the buyer takes possession, or title is transferred. For the Act to apply, a material part of the property must be destroyed.

Riparian Prior-Appropriation Doctrine

Most western states have adopted the doctrine of prior appropriation, which states that the water rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Subsequent users must not infringe upon the rights of the prior user. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create appropriation rights. The water rights are unconnected to the adjoining land and can be sold or transferred separately.

Mutual Mistake in Contract Formation

Mutual mistake occurs when both parties are mistaken as to an essential element of the contract. In such a situation, the contract may be voidable by the adversely affected party upon proof of the following: (1) Mistake of fact existing at the time the contract was formed; (2) The mistake relates to a basic assumption of the contract; (3) The mistake has a material impact on the transaction; and (4) The adversely affected party did not assume the risk of the mistake.

Best-interest-of-the-child Domestic Violence

Nearly every jurisdiction requires the court to consider the presence of domestic violence between the parties when awarding custody. Some jurisdictions have created rebuttable presumptions in favor of the nonabusive spouse.

Negative Covenants

Negative covenants run with the land if they restrict the owner's use or enjoyment of the land (e.g., a covenant not to use the property for vacation rentals).

Negligence generally

Negligence is conduct (the commission of an act or failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm. A prima facie case of negligence consists of four elements: (1) Duty, the obligation to protect another against unreasonable risk of injury; (2) Breach, the failure to meet that obligation; (3) Causation, a close causal connection between the action and the injury; and (4) Damages, the loss suffered. The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Child Support Tax Consequences

Neither the payor nor the recipient of the support may deduct the support from or include it in their income.

Trespass to Land - Damages

No proof of actual damages is required.

Assault - Damages

No proof of actual damages is required. The victim can recover nominal damages and, in appropriate cases, punitive damages. If the plaintiff sustains damages from physical harm, such as a heart attack resulting from the assault, then he may recover these as well.

Battery - Damages

No proof of actual harm is required; the plaintiff may recover nominal damages even though no actual damage occurred (to vindicate his right to physical autonomy). Many states allow recovery of punitive damages if the defendant acted outrageously or with malice (i.e., a wrongful motive, or a conscious or deliberate disregard of a high probability of harm). Under the thin-skull rule (also known as the "eggshell-plaintiff" rule), the defendant is not required to foresee the extent of damages in order to be held liable for all damages.

Specially Manufactured Goods and the Statute of Frauds

No writing is required if (1) the goods are to be specially manufactured for the buyer, (2) the goods are not suitable for sale to others, and (3) the seller has made "either a substantial beginning of their manufacture or commitments for their procurement." UCC § 2-201.

Nonmarital Children

Nonmarital children historically were not entitled to child support or to inherit from their father's estate. Courts now use an intermediate scrutiny standard to analyze the constitutionality of government action, focusing on the purpose behind the distinction between marital and nonmarital children. As a result, child support, government benefits, and wrongful-death claims may no longer be denied to nonmarital children, and nonmarital children may inherit from their father's estate so long as paternity was proved prior to the father's death. Nonmarital children may change their status and become marital children under certain circumstances, including when: (1) The parents marry after the birth of the child; (2) The father consents to being named on the birth certificate; (3) The father holds himself out or in some way acknowledges that he is the child's father; or (4) A judicial decree establishes paternity.

Facts subject to judicial notice

Not all adjudicative facts are subject to judicial notice. Judicial notice may be taken of an adjudicative fact only if it is not subject to reasonable dispute because (i) it is generally known within the territorial jurisdiction of the trial court, or (ii) it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b).

Notice of Termination of a Periodic Tenancy

Notice of termination must be given before the beginning of the intended last period of the periodic tenancy. For a year-to-year periodic tenancy, notice must be given at least six months (rather than one year) in advance. Many states have further reduced the advance notice period for a periodic tenancy of more than a month (e.g., one month for a year-to-year tenancy). Notice that is given late is generally treated as effective to terminate the tenancy as of the end of the following period. A notice of termination is generally effective only as of the last day of the period (e.g., the end of the month for a month-to-month tenancy that began on the first day of the month).

Required Limitations on discovery

On motion or on its own, the court is required to limit the frequency or extent of discovery otherwise allowed by the rules if it determines that: i) The discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient or less expensive; ii) The party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or iii) The proposed discovery is outside the scope permitted by Rule 26(b)(1) (not relevant and proportional). When discovery is challenged, the court must weigh the party's interests in seeking discovery against the privacy interests of the party resisting discovery. Eckstein Marine Serv., Inc. v. M/V Basin Pride, 168 F.R.D. 38 (W.D. La. 1996). For example, discovery with respect to personnel records may be limited due to privacy concerns. Gehring v. Case Corp., 43 F.3d 340 (7th Cir. 1994).

Notice of the Class Action

Notice of the class action is required only for class actions under Rule 23(b)(3). The notice must be the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: i) The nature of the action; ii) The definition of the class; iii) The class claims, issues, or defenses; iv) That a class member may enter an appearance through an attorney if the member so desires; v) That the court will exclude from the class any member who requests exclusion; vi) The time and manner for requesting exclusion; and vii) The binding effect of a class judgment on members. Rule 23(c)(2)(B). Generally, the cost of notifying the class member is borne by the plaintiff, even in cases in which the plaintiff is likely to succeed. Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). For class actions under Rule 23(b)(1) and (b)(2), notice of the action is at the court's discretion. The court may order that appropriate notice be given to the members of the class, which often can take the form of publication notice. Rule 23(c)(2)(A).

Leading questions in direct examination

On direct examination of a witness, a leading question—that is, a question that suggests the answer within the question—generally is not permitted. Fed. R. Evid. 611(c).

Sanctions sua sponte

On its own initiative, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11.

Venue Transfer in the Same District

On motion or by stipulation of all parties, a case may be transferred to a different division within a judicial district at the discretion of the court. § 1404(b).

The examiner's report

On request by the party or person examined, the party who requested the examination must provide a copy of the examiner's written report, including results of all tests, diagnoses, and conclusions, as well as any reports of earlier examinations of the same condition. If the examiner refuses to make a report, then the examiner's testimony may be excluded at trial. Rule 35(b).

Modification of Custody Order

Once a custody order has been entered, absent relocation, a state retains subject-matter jurisdiction to modify the order while the child remains a minor. The majority of jurisdictions apply a change-in-circumstances standard, requiring some substantial and unforeseen change since the issuance of the prior order. Some jurisdictions have also applied time barriers before an application for modification can be filed absent consent or endangerment. The purpose behind requiring time barriers or a substantial change in circumstances is to promote stability in the child's life. The violation of a child visitation order does not automatically change who is designated as the custodial parent; it is a factor to consider in modification of an order. The failure to pay child support is not a basis on which to withhold visitation or modify an existing child-custody order. If the custodial parent is proposing to relocate with the minor child, and the relocation will significantly impair the noncustodial parent's ability to see the child under the court-ordered visitation schedule, then it will almost always constitute a substantial change in circumstances warranting a modification. Note that prior to discussing the modification, if any, the court must provide the custodial parent with permission to relocate after applying the below factors.

Upon Default

Once a default has occurred, the secured party may: i) Seek possession of the collateral and, in order to satisfy the obligor's outstanding obligation, either: a) Sell the collateral; or b) Retain it in full or partial satisfaction of the obligation; ii) Initiate a judicial action to obtain a judgment based on that obligation; or iii) Subject to statutory limitations, pursue any course of action to which the debtor and obligor have agreed.

Consequence of a definitive ruling on evidence

Once a judge has made a definitive ruling on the admissibility of evidence, a party need not renew an objection or offer of proof, even if the ruling was made before the trial began. Fed. R. Evid. 103(b).

Satisfaction and Release

Once a plaintiff has recovered fully from one or a combination of defendants, she is barred from pursuing further action against other tortfeasors. The plaintiff generally may not receive double recovery. If the plaintiff has not been wholly compensated, it is now the usual rule that a release of one tortfeasor does not release the others but instead diminishes the claim against the others, ordinarily by the amount of compensation received from the released tortfeasor. However, a release may bar claims against other tortfeasors if either (i) the release agreement so provides or (ii) the plaintiff has been entirely compensated for his losses.

Legal Effects of Adoption

Once an adoption takes place, the adoptive parents have all of the rights and responsibilities that the biological parents would have had (e.g., support, custody, visitation, and inheritance), and the adopted child has all of the rights and responsibilities that a biological child would have had (e.g., intestate rights in the adoptive parents' estate). As the adoptive parents stand in the shoes of the adoptee's biological parents, the vast majority of jurisdictions will not permit visitation between the adoptee and her biological parents. A few states do authorize visitation between an adoptee and a nonparent, typically a stepparent, but only when there is a substantial relationship between the child and nonparent, and the visitation is in the child's best interests. Generally, an adoption may not be dissolved, although some states have permitted dissolution in limited circumstances, such as the discovery of an undisclosed mental or physical illness. In evaluating dissolution claims, courts typically consider the length of the relationship, the child's needs, and the parent's motives.

In Personam Jurisdiction - Fair Play

Once minimum contacts are established, a court must still examine the facts to determine if maintenance of the action would "offend traditional notions of fair play and substantial justice." International Shoe, supra. Courts consider a variety of factors when making this determination, including: i) The interest of the forum state in adjudicating the matter; ii) The burden on the defendant of appearing in the case; iii) The interest of the judicial system in the efficient resolution of controversies; and iv) The shared interests of the states in promoting common social policies.

Jury Trial After Removal

Once the action is removed to federal court, the removing party, if seeking a jury trial, must file the demand within 14 days of filing for removal or risk losing the right. Similarly, the non-removing party also has 14 days to file, but the countdown begins after service of notice of removal. In both cases, if the demand is not filed in a timely fashion, then the right to a jury trial is waived. There is an exception to this rule: When a party who, prior to removal, exercised his right to a jury trial, no need exists to make the same demand after removal.

Intentional Tort Defense - Defense of Others

One is justified in using reasonable force in defense of others upon a reasonable belief that the defended party would be entitled to use self-defense. It is no longer required that the force be used to defend a member of the defendant's own family or someone otherwise under the defendant's legal protection. The defender may use force that is proportionate to the anticipated harm to the other party. He is not liable for acting on a mistaken belief that the third party is in danger as long as his belief is reasonable.

Negligence - Recovery for Spouse

One spouse may recover for loss of consortium and services as a result of injuries to the other spouse resulting from the defendant's tortious conduct.

Public Nuisance - Abatement

One who is entitled to recover for a public nuisance has the right to abate that nuisance by self-help, as one would with a private nuisance. However, in the absence of unique injury, one may abate a public nuisance only by public authority.

Negligence - Duty by Authority

One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act.

Trespass to Chattels - Intent

Only the intent to do the interfering act is necessary; the defendant need not have intended to interfere with another's possession of tangible property. The doctrine of transferred intent applies to trespass to chattels.

Strict Product Liability - Indemnification

Ordinarily, if the plaintiff recovers from the retailer solely for a product defect that existed at the time the product left the manufacturer's control, the retailer is able to recover from the manufacturer in an indemnification action.

Child Support - percentage-of-income model

Other jurisdictions have adopted a percentage-of-income model, which determines the minimum amount of child support by using a percentage of the supporting (i.e., noncustodial) parent's net income, determined by the number of children supported. Certain expenditures, such as taxes or necessary medical expenditures, may be excluded when calculating net income. See, e.g., 750 Ill. Comp. Stat. 5/505.

Ownership of Real Property

Ownership of real property may be transferred by sale, by gift, or, upon death, by devise or intestate succession. The seller or donor is called the "grantor," and the buyer or recipient is called the "grantee." This section will discuss both present and future possessory interests in land (which are subject only to the rights of others), and other sections will discuss nonpossessory interests in land (which are subject to specific restrictions as to the use of the land).

Parents and Children - Negligence of Parents

Parents, however, are liable for their own negligence with respect to their minor child's conduct. A parent is under a duty to exercise reasonable care to prevent a minor child from intentionally or negligently harming a third party, provided the parent: (1) Has the ability to control the child; and (2) Knows or should know of the necessity and opportunity for exercising such control. In such circumstances, a parent who fails to exercise control may be liable for harm caused by the child, even though the child, because of his age, is not liable. Restatement (Second) of Torts § 316 (1965).

Parol Evidence Rule Exception - Condition Precedent

Parol evidence may also be admitted to prove a condition precedent to the existence of the contract.

Business Partner Tort Liability

Partners in a joint enterprise, when two or more parties have a common purpose and mutual right of control, may be liable for the tortious acts of each other that are committed within the scope of the business purposes.

Condition precedent and condition subsequent to Contract

Performance by one or both of the parties may be made expressly conditional in the contract, and the condition may precede the obligation to perform (condition precedent) or may excuse the duty to perform after a particular event occurs (condition subsequent). A condition subsequent exists only with respect to a duty that is absolute. (Note: Under the Restatement (Second) of Contracts, a condition subsequent is treated as a discharging event rather than as a condition. Restatement (Second) of Contracts §§ 224, 230.) If a defendant's duty is subject to a condition precedent, then the plaintiff has the burden of proving that the condition occurred in order to recover. If the defendant's duty is subject to a condition subsequent, then the defendant must prove the happening of the condition to avoid liability.

Spousal Maintenance - permanent

Permanent alimony is an award for the remainder of the dependent spouse's life, unless certain circumstances occur. The purpose behind permanent alimony is to compensate the dependent spouse for either the lost earning capacity or benefit conferred to the other spouse during the marriage. It is primarily used in cases in which one spouse remained out of the workforce for homemaking or child-rearing purposes. Permanent alimony is typically awarded only when the marriage was one of long duration. Although jurisdictions differ on the definition of "long-term," it typically refers to a marriage of 15 years or more.

Life Estate - Permissive Waste

Permissive waste occurs when the tenant "permits" the premises to deteriorate through neglect, a failure to preserve the property, or a failure to reasonably protect the property. To maintain the property and avoid permissive waste, the tenant is required to make reasonable repairs but need not spend more than the amount of income generated by the property. The tenant's duties include paying any property taxes and mortgage interest associated with the property and, in some jurisdictions, the duty to pay insurance premiums.

In Personam Jurisdiction - Consent

Personal jurisdiction can be established by a party's consent. Under Rule 12(b), the defense of lack of personal jurisdiction must be asserted in a responsive pleading or by motion before a responsive pleading is submitted. The failure to timely object to a court's assertion of personal jurisdiction waives the objection. Rule 12(h). Plaintiffs are said to have consented to personal jurisdiction by filing the lawsuit.

Physical Child Custody

Physical custody is the right to have the child reside with a parent or guardian and the obligation to provide for routine daily care and control of the child. As with legal custody, physical custody may be shared by both parents under a joint custody arrangement.

Modification of Custody - Cohabitation

Some states permit a hearing to consider a change in custody when the custodial parent is living with a nonmarital partner. However, a change in custody is generally not granted unless there is a showing that the cohabitation is having an adverse effect on the child.

Negligence - Physicians and Informed Consent

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure to comply with this "informed consent" doctrine constitutes a breach of the physician's duty owed to the patient and is actionable as medical malpractice (medical negligence). A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any "material risk"; that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment. Doctors are not under an obligation to disclose when: (1) The risk is a commonly known risk; (2) The patient is unconscious or otherwise incapable of giving consent (e.g., emergency treatment); (3) The patient waives or refuses the information; (4) The patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or (5) The disclosure would be detrimental to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack).

Adverse Possession - Exclusive

Possession cannot be shared with the true owner, although two or more people can join together to create a tenancy in common by adverse possession.

Adverse Possession - Continuous

Possession must be continuous and uninterrupted for a specific period (e.g. 10, 15, or 20 years). Seasonal or infrequent use may be sufficiently continuous if it is consistent with the type of property that is being posssessed (e.g. land at a summer camp).

Adverse Possession - Actual, Open, and Notorious

Possession must be open and notorious, such that a reasonable true owner would become aware of the claim. Uses that are hidden (such as underground wiring or piping) are insufficient to satisfy this requirement.

Premarital Agreements - Full Disclosure

Premarital agreements must provide full disclosure of financial status, including income, assets, and liabilities of all parties. Disclosure is an important consideration to the court, as it demonstrates that each party exercised a meaningful choice when they agreed to the terms of the contract. Absent full disclosure, a court will generally refuse to enforce the agreement.

Agent's Duty of Care

Principals have the right to expect an agent to follow instructions and to perform duties, tasks, and transactions with reasonable care, diligence, and judgment. Uncompensated agents are expected to perform in an acceptable manner and are subject to the same standard of care as a compensated agent.

Plaintiffs Permissive Joinder

Pursuant to Rule 20(a)(1), persons may join in one action as plaintiffs if: i) They assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ii) Any question of law or fact common to all plaintiffs will arise in the action.

Parol Evidence Rule Exception - Context Rule

Some states permit courts to use a contextual approach to contract interpretation. Under the context rule, judges determine the contract's meaning by considering all evidence of the facts and circumstances related to the transaction. The goal is to effectuate the parties' actual contract objectives and purposes.

Adoption - Withdrawal of Consent

Prior to a final decree of adoption, the parents' consent to adoption may be withdrawn with court approval. After the final decree is entered, however, no withdrawal of consent is allowed.

UCC and Specific Performance

Specific performance may be granted to the buyer when the goods are rare or unique, or in other circumstances, such as for breach of a requirements contract when there is not another convenient supplier. UCC § 2-716.

Rule 12(b) Motion to Dismiss

Prior to filing an answer, a defendant may file a motion under Rule 12(b), raising any or all of the following defenses: i) Lack of subject matter jurisdiction; ii) Lack of personal jurisdiction; iii) Improper venue; iv) Insufficient process; v) Insufficient service of process; vi) Failure to state a claim upon which relief can be granted; and vii) Failure to join a necessary or indispensable party under Rule 19. Such motions generally seek dismissal of the claim. For the defenses of insufficient process and service of process, though, it is common to make a motion to quash the service of process or the process itself.

Court's proposed jury instructions

Prior to final arguments, the court must inform the parties of any instructions it proposes to give to the jury with regard to its verdict. The court must also inform the parties of its proposed action on the parties' requests for jury instructions. Rule 51(b).

Trespass to Land - Private Necessity

Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of people. The privilege applies if the interference was reasonably necessary to prevent a threatened injury from nature or another force not connected with the plaintiff. The property owner is entitled to recover actual damages, but he cannot recover nominal or punitive damages nor can he use force to eject the defendant.

Private Nuisance - Substantial Interference vs. Trespass

Private nuisance requires substantial interference with the plaintiff's use and enjoyment of her property. Trespass, however, does not require a substantial intrusion.

Privilege and Discovery

Privileged information is not discoverable. In federal question cases, privileges are determined under federal common law, pursuant to Rule 501 of the Federal Rules of Evidence. In diversity or supplemental claims in which a state's substantive laws apply, that state's law determines whether a privilege applies.

Collateral

Property subject to a security interest is called "collateral." The characterization of collateral as, for example, inventory or a deposit account can affect the validity of a security interest, the way in which a security interest can be perfected, and the rights of a third party in the collateral, such as a buyer of collateral. UCC § 9-102(a)(12).

Defendants Permissive Joinder

Pursuant to Rule 20(a)(2), persons may be joined in one action as defendants if: i) Any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and ii) A question of law or fact common to all defendants will arise in the action.

Permissive joinder of claims

Pursuant to Rule 18(a), a party who can assert a claim, counterclaim, cross-claim, or third party claim (i.e., a qualifying claim that clearly can be brought under the Federal Rules) may join with it as many independent or alternative claims of whatever nature as the party may have against an opposing party. Rule 18 permits joinder of claims, but it does not compel it. However, res judicata (claim preclusion) concerns will often practically require joinder, because if a claim could be raised and is not, it will generally be subject to claim preclusion.

Public Nuisance - Relief

Public authorities can either (i) seek injunctive relief to abate (prevent the continuation of) the public nuisance or (ii) criminally prosecute the defendant.

IIED - Public Figures

Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publication without showing in addition that the publication contains a false statement of fact that was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988).

Defamation - Publication to Third Party

Publication of defamatory matter is its intentional or negligent communication to a third party (i.e., to someone other than the person being defamed) who understands its defamatory nature.

Punitive Damages in Contracts

Punitive damages are rarely available in contract actions. Some states allow punitive damages to punish fraud, for violation of a fiduciary duty, for acts of bad faith, or for deterrence. Under the Restatement (Second) of Contracts § 355, punitive damages are not recoverable "unless the conduct constituting the breach is also a tort for which punitive damages [can be recovered]."

Permissive Joinder of Contingent Claims

Pursuant to Rule 18(b), a party may join two claims even though one of them is contingent on the disposition of the other.

Class action approval by court

Pursuant to Rule 23(c), at an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action. The class must meet all the above requirements to be certified. If a class is certified, then the court's order must define the class and the class's claims, issues, or defenses and must appoint counsel for the class. A party may seek an appeal to the certification even though the certification is not a final judgment.

Pretrial disclosures

Pursuant to Rule 26(a)(3)(A), in addition to the initial and expert disclosures, the parties must make certain disclosures regarding evidence that they may present at trial other than for impeachment purposes. They must file with the court: i) The name and, if not previously provided, the address and telephone number of each witness, separately identifying those the party expects to present and those it may call if the need arises; ii) The designation of those witnesses whose testimony the party expects to present by deposition and, if not taken stenographically, a transcript of the pertinent parts of the deposition; and iii) An identification of each document or other exhibit, including summaries of other evidence, separately identifying those items the party expects to offer and those it may offer if the need arises.

Supplementation to Discovery

Pursuant to Rule 26(e)(1)(A), if a party who has made a required disclosure or responded to an interrogatory, request for production, or request for admission learns that the disclosure or response is materially incomplete or incorrect, then the party is required to supplement or correct the disclosure or response in a timely manner. There is no duty to supplement or correct if such information has otherwise been made known to the other parties in discovery or in writing. As to an expert whose report must be disclosed under Rule 26(a)(2)(B), the party's duty to supplement extends both to information included in the expert's report and to information given during the expert's deposition. Rule 26(e)(2).

Failure to attend an oral deposition

Pursuant to Rule 30(g), if a party given notice to attend a deposition attends expecting such deposition, and the noticing party fails to attend or proceed with the deposition, then the noticing party is subject to a court order requiring payment of reasonable expenses to the other parties.

Written depositions

Pursuant to Rule 31, depositions may be taken by written questions to the deponent. The same rules regarding leave of the court and deposing an organization that apply to oral depositions apply to written ones. They are as follows: i) To take a written deposition, the deposing party must serve the questions and a notice, identifying the deponent and the officer before whom the deposition will be taken, to all other parties. Rule 31(a)(3). ii) The other parties may then serve cross-questions, redirect questions, and recross questions on all other parties. Rule 31(a)(5). iii) The deposing party serves the notice and all questions on the officer designated in the notice. Rule 31(b). iv) The officer asks the written questions of the deponent and records the deponent's oral responses stenographically or by electronic means. Id.

Objections to the admissibility of depositions

Pursuant to Rule 32(b), an objection to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying may generally be made at the time the deposition is offered at a hearing or trial.

Scope of interrogatories

Pursuant to Rule 33(a)(2), interrogatories may relate to any matters permitted to be inquired into under Rule 26(b)(1) (i.e., non-privileged matters relevant to any party's claim or defense and proportional to the needs of the case). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

Availability of interrogatories

Pursuant to Rule 33(a), any party may serve no more than 25 written interrogatories on any other party. Interrogatories may not be used on nonparty witnesses.

Contents of Rule 34 Request

Pursuant to Rule 34(b)(1), the request: i) Must describe with reasonable particularity each item or category of items to be inspected; ii) Must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and iii) May specify the form or forms in which electronically stored information is to be produced.

Failure to admit under Rule 36

Pursuant to Rule 37(c)(2), when a party fails to admit a matter requested under Rule 36 and another party proves the matter to be true at trial, the party proving the matter can move for the award of reasonable expenses, including reasonable attorney's fees, incurred in proving the matter.

Failure to participate in the framing of the discovery plan

Pursuant to Rule 37(f), if a party or her attorney fails to participate in good faith in the development and submission of a proposed discovery plan as required by Rule26(f), then the court may, after providing an opportunity for a hearing, order the party or attorney to pay the reasonable expenses, including attorney's fees, incurred as a result of such failure.

Waiver of Service generally

Pursuant to Rule 4(d), a competent individual, corporation, or association that is subject to service has a duty to avoid unnecessary expenses of serving the summons by waiving service. The plaintiff may notify such a defendant that an action has been commenced and request that the defendant waive service of the summons. This request is not available if the defendant is a government entity, a minor, or is incompetent.

Methods of Service on individuals outside the US

Pursuant to Rule 4(f), service may be effected in any manner, internationally agreed upon, that is reasonably calculated to give notice. If no international agreement exists, or if an international agreement permits service by other means, then service on any competent individual outside the United States may be effected by any method permitted by the law of the foreign country; or, unless the foreign country's law prohibits it, by personal service of the summons and the complaint to the individual or by using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or by any other means not prohibited by international agreement, as ordered by the court.

Intentional Tort - Act

The act must be voluntary, meaning that the defendant must have directed the physical muscular movement.

Methods of Service on corporations and associations in the US

Pursuant to Rule 4(h), service on a corporation or an unincorporated association (e.g., a partnership) in the United States may be effected by delivering the summons and complaint to an officer, managing agent, general agent, or agent appointed or authorized by law to receive process. If the agent is one authorized by statute, and the statute so requires, the plaintiff must also mail a copy of the summons and complaint to the defendant. Rule 4(h)(1)(B). In addition, service may be made by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made. Rule 4(e)(1).

Voluntary Dismissal by plaintiff or stipulation

Pursuant to Rule 41(a)(1)(A), a plaintiff may dismiss an action without leave of the court by filing a notice of dismissal at any time before the opposing party serves either an answer or a motion for summary judgment or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice or stipulation, the voluntary dismissal will be without prejudice. If, however, a plaintiff had dismissed a prior action, whether a state or federal action, based on the same claim, the dismissal is with prejudice. This is referred to as the "two-dismissal" rule. Rule41(a)(1)(B).

Partial summary judgment

Pursuant to Rule 56(g), if the court does not grant all the relief requested by the motion, then it may enter an order stating any material fact—including an item of damages or other relief—that is not genuinely in dispute and treating the fact as established in the case.

Timing of motion for a new trial

Pursuant to Rule 59(b), a motion for a new trial must be filed no later than 28 days after the entry of judgment. When the motion is based on affidavits, those affidavits must be filed with the motion. The opposing party then has 14 days after being served to file opposing affidavits. The court may permit reply affidavits. Rule 59(c).

Order for new trial by the court on its own

Pursuant to Rule 59(d), no later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on the motion of a party. The court must specify the reasons in its order.

When notice isn't required for a TRO

Pursuant to Rule 65(b)(1), a TRO may issue without notice to the adverse party if: i) The moving party can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party's opposition; and ii) The movant's attorney certifies in writing any efforts made to give notice and the reason why notice should not be required.

Compulsory Joinder

Rule 19 specifies circumstances in which additional parties must be joined. Note that the requirements of jurisdiction (both subject matter and personal) and venue must still be met in order for compulsory joinder to occur. Under certain circumstances, if compulsory joinder cannot occur because of jurisdictional or venue issues, Rule 19(b) may require the action to be dismissed from federal court.

Permissive Joinder

Rule 20 sets forth the circumstances in which a plaintiff may join other plaintiffs in an action or in which defendants may be joined in the same action.

Adjudication of Rule 12(b)(6) motion

Recently, the United States Supreme Court established a two-step analysis for adjudicating a motion to dismiss under Rule 12(b)(6). First, the court must identify and reject legal conclusions unsupported by factual allegations. This includes mere conclusory statements and assertions devoid of facts. For example, a complaint that alleges that a defendant caused an injury, without explanation as to how it occurred, does not meet the requirements of Rule 8(a) and, as a result, cannot survive a Rule 12(b)(6) motion. Second, the court should assume the truth or veracity of well-pleaded factual allegations and should include a "context specific" analysis that "draw[s] on [the Court's] judicial experience and common sense" to determine whether the allegations "plausibly give rise to an entitlement of relief." Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Divorce - Recrimination and unclean hands

Recrimination occurs when both spouses have committed a marital wrongdoing of like conduct. In other words, because both parties were guilty of the same offense (e.g., adultery) that would justify a divorce, a court could not grant the request. A similar defense is "unclean hands," when the plaintiff's own behavior or acts are questionable. Both of these defenses are most commonly seen in desertion, adultery, or cruelty cases.

Time Limitation on Redemption of Collateral

Redemption cannot occur if the secured party has disposed of the collateral or entered into a contract for its disposition, accepted the collateral in full or partial satisfaction of the obligation secured by the collateral, or collected on the collateral. UCC § 9-623(c).

Contract Reformation

Reformation is the modification of a contract by a court upon petition by a party. The modification is typically based on the failure of the contract to reflect the intent of the parties to the contract.

Reformation of a Writing for Mistake

Reformation of a writing for mistake is available if: (1) There was a prior agreement (either oral or written) between the parties; (2) There was an agreement by the parties to put that prior agreement into writing; and (3) As a result of a mistake, there is a difference between the prior agreement and the writing.

Limitations on Reformation, Rescission, and Cancellation

Reformation, rescission and cancellation are not available if the contract or other instrument concerns property that has been transferred to a bona fide purchaser who is unaware of the conduct (e.g., fraud) that gives rise to a justification for the reformation, rescission, or cancellation. In addition, a party to a contract is generally required to tender any consideration received in order to pursue an action for rescission.

Board of Common-Interest Ownership Community

Regardless of the legal form, the association is typically governed by a board. Unless a statute or a governing document provides otherwise, the board exercises the powers of the common-interest ownership community. The board is elected by the members of the association, who are the owners of the individual lots, units, or leasehold interests. The board may maintain day-to-day control over the maintenance of the property or may employ a manager to do so. Restatement (Third) of Property: Servitudes § 6.16. Members generally have the right to vote in elections for the board of directors and on other matters properly presented to the members, to attend and participate in meetings of the members, and to stand for election to the board of directors. Restatement (Third) of Property: Servitudes § 6.18.

Spousal Maintenance - rehabilitative

Rehabilitative support is for a limited period of time, such as until the spouse receives education or employment. The purpose of rehabilitative alimony is to enhance and improve the earning capacity of the economically dependent spouse. For example, a spouse may be required to pay rehabilitative alimony for a period of four years while a dependent spouse attends college. The payments would automatically terminate at the end of the four-year period.

Reliance Damages

Reliance damages may be recovered if a nonbreaching party incurs expenses in reasonable reliance upon the promise that the other party would perform. Unlike with a restitutionary recovery, with reliance damages, there is no requirement that the defendant benefit from the plaintiff's expenditures. The injured party can choose to pursue reliance damages instead of expectation damages, but a party cannot recover both reliance and expectation damages. Reliance damages are mitigated by any losses that the plaintiff would have sustained if the contract had been performed. In addition, reliance damages generally may not exceed the full contract price. Restatement (Second) of Contracts § 349.

Implied Warranty of Fitness or Suitability for New Homes

Replacing the doctrine of caveat emptor ("let the buyer beware"), a warranty of fitness or suitability (or a warranty of quality, workmanlike construction, performance, or habitability) is implied in almost all jurisdictions in a contract for the sale of a newly constructed residence. In some jurisdictions, the warranty extends to the repair or remodeling of an existing residence and even to related structures (such as a detached garage or a retaining wall).

Options for nonrepudiating Party

Repudiation excuses the occurrence of any condition that would otherwise prevent the repudiating party's duty from being absolute. Upon repudiation, the promisee can generally treat the repudiation as a breach and sue the promisor immediately or ignore it and demand performance. If the repudiation is ignored, then continued performance by the promisee must be suspended if the performance would increase the damages of the promisor. However, when the date of performance has not passed and the promisee has fully performed, the promisee must wait until the promisor's performance is due before filing suit. In this situation, anticipatory breach is inapplicable; the promisee must wait for actual breach before filing suit. Typically, this occurs when the promisor's obligation is the payment of money.

Retraction of Repudiation

Repudiation may be retracted until such time as the promisee (1) acts in reliance on the repudiation, (2) signifies acceptance of the repudiation, or (3)commences an action for breach of contract. Notice of the retraction must be sufficient enough to allow for the performance of the promisee's obligations.

Rescission by Mutual Agreement

Rescission (or cancellation) of a contract can occur by the mutual agreement of the parties. The surrender of rights under the original contract by each party is consideration for the rescission by mutual agreement. In cases of third-party beneficiaries, a contract cannot be not rescinded by mutual agreement if the rights of the third-party beneficiary have already vested.

Contract Rescission

Rescission is the unmaking of a contract, whether the contract is oral or written. Rescission leaves the parties to a contract in the same position they would have been in if the contract had never existed.

Residential Property exception to due-on-sale clause

Residential real property, which includes property containing fewer than five dwelling units, is not subject to federal enforcement of a due-on-sale clause with respect to a variety of transfers, including the automatic "transfer" of a joint tenancy interest upon the death of the borrower, a transfer by will or intestacy to a relative upon the death of the borrower, a transfer to the spouse or child of the borrower, a transfer to an ex?spouse due to a divorce, and a transfer to the borrower's living trust. 12 USC § 1701j-3(d).

Marital Property - retirement or pensions

Retirement or pension benefits acquired during the marriage are considered marital property and are subject to equitable distribution. This includes military pensions.

Navigable Waterways

Rights in navigable waters are controlled by the government's right to protect the use of the waterway for transportation and public access. Rights to nonnavigable water vary depending on the theory to which the jurisdiction subscribes (primarily reasonable use or prior appropriation).

Riparian Rights

Riparian rights deal with the right of an owner to take and use water from a watercourse that flows through or adjacent to the owner's land, as well as the ability of the landowner to transfer those rights to another.

Rule 11

Rule 11 establishes the standards that attorneys and individual parties must meet when filing pleadings, motions, or other papers. It also provides for sanctions against parties, attorneys, and law firms for violations of the rule.

Impleader

Rule 14 sets out the rules governing impleader (third-party claims). These are claims that are made by a defending party against a nonparty for all or part of the defending party's liability on an original claim. The plaintiff may also assert related claims against the impleaded party. In both cases, the impleaded claim must relate to the original claim against the defending party. The court may sever any third-party claim if justice demands it.

Interpleader and subject matter jurisdiction

Rule 22 does not create subject matter jurisdiction in interpleader actions. Rather, the court must already have jurisdiction over all parties. Thus, a plaintiff will need federal question jurisdiction or, for diversity jurisdiction, the citizenship of the party bringing the action must be completely diverse from that of the claimants, and the statutory amount in controversy must be met. While the stakeholder needs to be diverse from the claimants, the claimants need not be diverse among themselves.

Basic requirements of class action

Rule 23(a) establishes four requirements for representative members of a class to sue or be sued on behalf of all members of the class: i) The class must be so numerous that joinder of all members is impracticable; ii) There must be questions of law or fact that are common to the class; iii) The claims or defenses of the representatives must be typical of the class; and iv) The representatives must fairly and adequately protect the interests of the class.

Intervention generally

Rule 24 governs the circumstances under which a nonparty may join in a lawsuit. In some circumstances, the nonparty may intervene as of right. In other circumstances, the nonparty must have the permission of the court. Note that in either case, a motion to intervene must be timely.

Mandatory Pretrial Disclosures

Rule 26(a) requires the parties, three times prior to trial, to make certain disclosures: (i)initial disclosures, (ii) disclosures of expert testimony 90 days before trial, and (iii)pretrial disclosures 30 days before trial. These disclosures are mandatory and must be made even if an opposing party does not ask for such information. Unless otherwise ordered by the court, the disclosures must be in writing, signed, and served.

Exceptions to Initial Disclosure

Rule 26(a)(1)(B) excludes nine categories of proceedings from the initial disclosure requirements: i) Actions for review on an administrative record; ii) Forfeiture actions in rem arising from a federal statute; iii) Petitions for habeas corpus or any other proceeding to challenge a criminal conviction or sentence; iv) Actions brought without an attorney by a person in the custody of the United States, a state, or a state subdivision; v) Actions to enforce or quash an administrative summons or subpoena; vi) Actions by the United States to recover benefit payments; vii) Actions by the United States to collect on a student loan guaranteed by the United States; viii) Proceedings that are ancillary to proceedings in another court; and ix) Actions to enforce an arbitration award.

Disclosure of expert testimony

Rule 26(a)(2) requires parties to disclose the identity of persons who may testify as expert witnesses and to produce any expert report for each such witness. The expert report must be prepared and signed by the expert and contain: i) A complete statement of and basis for all opinions to be expressed; ii) The facts or data considered by the expert in forming the opinions; iii) Any exhibits used as support for or as a summary of the opinions; iv) The qualifications of the expert; v) A listing of all publications authored by the expert in the past 10 years; vi) The expert's compensation; and vii) A list of all other cases in which the expert has testified at trial or deposition in the past four years.

Discovery and trial preparation materials

Rule 26(b)(3) provides limited protection for otherwise discoverable trial preparation materials or the work product of attorneys. In general, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Such materials will be subject to discovery, however, if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. If the court orders discovery of trial-preparation materials, Rule 26(b)(3)(B) requires the court to protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

Right to Jury Trial

Rule 38 provides that the right of trial by jury as declared by the Seventh Amendment to the U.S. Constitution, or as provided by a federal statute, is preserved to the parties inviolate. In general, an action at law (e.g., an action for damages) is tried on demand to a jury, but an action in equity (e.g., an action for injunction) is not. If a new cause of action that was unknown at common law is created, then the court must look to the remedy sought and allow a jury if the relief sought is legal rather than equitable.

Service of Process generally

Rule 4 sets forth the procedure for service of process in a federal action, detailing the form, content, method of issuance, methods of service, and time of service of a summons and complaint. In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party named as a defendant in a complaint. Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).

Time limits for Federal Civil Procedure generally

Rule 6 sets out guidelines for computing time limits that apply throughout the Federal Rules of Civil Procedure, unless otherwise provided. Under Rule 6(a)(1), whenever a time period is stated in days, the period excludes the day of the event that triggers the period, but includes every day following, including intervening Saturdays, Sundays, and legal holidays. If the last day of the period is a Saturday, Sunday, or legal holiday, then the period is extended to include the next non-weekend or non-holiday day. Rule 6(a)(1).

Correction of Judgment

Rule 60(a) allows a court to correct a clerical or other mistake resulting from oversight or omission whenever one is found in a judgment, order, or other part of the record. Rule 60(a). An example of such a mistake would be when a court meant to enter a judgment for the plaintiff for $100,000, and it appeared in the written judgment as "$10,000." The court may make such a correction on motion by a party or on its own initiative, with or without notice. However, once an appeal from the judgment or order has been docketed in the appellate court, such a correction can be made only with leave of the appellate court. Id.

Relief from a judgment or order

Rule 60(b) allows a court to relieve a party from a final judgment or order for a motion filed: i) Within a reasonable time, and no later than one year following the entry of the judgment or order for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence that could not have been earlier discovered with reasonable diligence, fraud (intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; ii) Within a reasonable time, with no definite limiting period, on the grounds that: a judgment is void; a judgment has been satisfied, released, or discharged; a judgment was based on a judgment that was reversed or vacated; applying the judgment prospectively is no longer equitable; or for any other reason that justifies relief. In sum, Rule 60(b) allows a court to exercise its equitable jurisdiction to relieve a party from a judgment in any case in which enforcing the judgment would work injustice, and the party seeking relief or its counsel was not guilty of misconduct or gross negligence. If a motion for relief is made, but the court lacks the authority to rule because of the pendency of an appeal, then the court may (i) defer, (ii) deny the motion, or (iii) state that it would grant the motion upon remand. Rule 62.1. The court may provide any relief that it believes to be appropriate based on the evidence, and it is not limited to the relief requested in the pleadings.

Injunctions generally

Rule 65 permits injunctions, which are a form of equitable relief that mandates a defendant to or prohibits a defendant from performing a specified act. Injunctions are considered an extraordinary remedy, only to be granted in limited circumstances. See Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). Every order granting injunctive relief must state the reasons for its issuance, specifically state its terms, and specify the acts that the defendant is restrained from performing or required to perform. Additionally, to protect the adverse party against harm in the event of an erroneous grant of preliminary relief, the rule expresses a preference that the moving party posts an injunction bond. Rule 65(c), (d). There are two types of injunctions: mandatory and prohibitory. The determining factor is the type of conduct that is affected by the injunction, if granted. A mandatory injunction, which is a specific relief, requires a person to engage in an affirmative act that typically changes the status quo. Yu Juan v. City of New York, et al., 181 Fed. Appx. 38 (2d Cir. 2006). When the injunction is directed at providing mandatory relief, as opposed to preserving the status quo, the moving party's burden is particularly heavy. United States v. Spectro Foods Corp, 544 F.2d 1175, 1181 (3d Cir. 1976). A prohibitory injunction, which is a form of preventive relief, restrains or prohibits a party from engaging in a specified behavior.

Complaint - statement of the claim

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" to "give the defendant fair notice of what [the] plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Detailed factual allegations are not required, but a party may not merely recite the elements of a cause of action with broad, conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662 (2009), Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A complaint should not be dismissed for an imperfect statement of the legal theory. Johnson v. City of Shelby, 574 U.S. ___, 135 S. Ct. 346 (2014).

Special Matters Rules

Rule 9 sets forth certain special rules with regard to pleading, which apply not just in the context of a complaint, but to any pleading. In certain circumstances (described below), a party is required to plead with greater detail than under the general rules. Federal courts have no power to require more specific pleading beyond the rules set forth in the Federal Rules of Civil Procedure or by statute. See Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

Negligence - Safety Codes

Safety codes promulgated by industries, associations, and government bodies for the guidance of operations within their respective fields of interest are admissible to prove custom.

"Abuse of discretion" review standard

Sanctions are subject to review under the "abuse of discretion" standard. Generally, the harshest sanctions—dismissal of the action and entry of a default judgment—are reserved for misconduct that is serious, repeated, contumacious, extreme, or inexcusable. Usually, a court should impose lesser sanctions before meting out more severe ones. See Bachier-Ortiz v. Colon-Mendoza, 331 F.3d 193 (1st Cir. 2003).

Types of sanctions

Sanctions may include: i) Nonmonetary directives; ii) An order to pay a penalty into court; or iii) If imposed on motion and warranted for effective deterrence, an order directing payment to the movant for part or the entirety of reasonable attorney's fees and other expenses directly resulting from the violation.

Negligence - Sellers of Real Property

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller. These are conditions that the buyer is unlikely to discover upon reasonable inspection. The seller's liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect.

Separation Agreement

Separation agreements are made between spouses who are planning for divorce. These agreements can define property division, spousal support, child support, custody, and visitation. The court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud. Provisions related to child support and custody, on the other hand, are modifiable by the court if the initial terms are not in the best interests of the child. These agreements are generally merged into the final judgment for divorce, as long as they are based on full and fair disclosure. When no merger occurs, enforcement is based on contract law rather than judgment enforcement.

Methods of Service on individuals in the US

Service generally may be made within the state in which the federal district court sits by: i) Personally serving the summons and complaint on the defendant; ii) Leaving the summons and complaint at the defendant's usual place of abode with a person of suitable age and discretion who resides there; or iii) Delivering the summons and complaint to an agent appointed by the defendant or otherwise authorized by law to receive service. In addition, service may be made by following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made. Rule 4(e).

Methods of service on corporations and associations outside the US

Service on corporations and associations outside the United States may be made using any methods available for service on an individual outside the United States, except personal delivery under Rule 4(f)(2)(c)(i).

Battery - Causation

The act must in fact result in contact of a harmful or offensive nature. A defendant who sets in motion a chain of events that causes contact with the plaintiff, whether the contact is direct or indirect, is liable (e.g., a tripwire set by the defendant that causes the plaintiff to fall).

Modification of Child Support Jurisdiction

Similar to the jurisdictional issues with child-custody orders, a state court may not modify an order of child support rendered by a court of continuing jurisdiction in another state unless the parties, including the child, no longer reside in that state or the parties expressly agree to permit another state to exercise jurisdiction. A court order that fails to adhere to this jurisdiction rule does not qualify for enforcement under the Full Faith and Credit Clause of the U.S. Constitution. 28 U.S.C. § 1738B(a) (Full Faith and Credit for Child-Support Orders Act); UIFSA § 205. As with enforcement, a child-support order may be registered in another tribunal (e.g., order entered in Mississippi, but all parties moved to Minnesota and the order is then registered in Minnesota). It is important to note, however, that if an aspect of a child-support obligation may not be modified under the law of the state that first imposed the obligation, that aspect of the obligation may not be modified under the laws of any other state. UIFSA § 611, cmt. See also, C.K. v. J.M.S., 931 So. 2d 724 (Ala. Civ. App. 2005) (although the amount of child support may be modified, the length of the obligation may not be changed, as it is a nonmodifiable aspect of the original order); Wills v. Wills, 745 N.W.2d 924, 926-29 (Neb. Ct. App. 2008).

Slander of Title

Similar to trade libel, slander of title protects against false statements that harm or call into question the plaintiff's ownership of real property. The plaintiff must prove: i) Publication; ii) Of a false statement; iii) Derogatory to the plaintiff's title; iv) With malice; v) Causing special damages; vi) As a result of diminished value in the eyes of third parties.

Duty to Relinquish Control of Collateral

Similarly, a secured party in control of collateral has a duty to relinquish control when there is not an outstanding secured obligation and the secured party is not committed to make advances or otherwise give value. Generally, the secured party has 10 days from receiving an authenticated demand by the debtor to relinquish control; this time period may be varied by the parties' agreement. Upon the secured party's failure to relinquish control, the debtor has the same remedy as if the secured party failed to file a termination statement. UCC § 9-208.

Strict Product Liability - Auctioneer

Similarly, an auctioneer of a product generally is not subject to strict liability with respect to the products auctioned.

Security Agreement by Control of Collateral

Similarly, for types of collateral that typically have no physical existence (i.e., deposit accounts, electronic chattel paper, electronic documents, investment property, and letter of credit rights), a secured party's control of the collateral satisfies the evidentiary requirement that the debtor assent to the security agreement, provided the control is pursuant to the security agreement. UCC § 9-203(b)(3)(D).

Parol Evidence Rule Exception - Establishing a Defense to the Formation of a Contract

Similarly, the parol evidence rule does not apply to evidence offered to establish a defense such as mistake, misrepresentation, incompetence, illegality, duress, or lack of consideration. If the evidence would make the contract void or voidable, then the parol evidence rule will not apply.

Marital Property - Social Security

Social Security benefits are not subject to equitable distribution. Fleming v. Nestor, 363 U.S. 603 (1960) (applying accrued property rights to the Social Security system would deprive it of the flexibility in adjustment that it demands).

Software Under Article 9

Software embedded in goods, such as a diagnostic computer program contained in an automobile, is treated as part of the goods in which it is embedded. Software that is not embedded in goods, such as software sold in a separate box at a retail store, is treated as a "general intangible." See § I.D.2.i. General intangibles, infra. UCC § 9-102(a)(44), (75), incl. cmts. 4.a., 25.

Negligence - Foreseeability of Harm Minority Rule

Some courts follow the Andrews test from Palsgraf and find proximate cause for all consequences that flow directly from the defendant's conduct, considering factors including the number of intervening causes and the remoteness of the cause from the effect. Other courts find proximate cause if the defendant's conduct was a direct cause of the plaintiff's injury, regardless of foreseeability.

Divorce - Habitual Drunkenness

Some states permit habitual drunkenness as a ground for divorce if it is the frequent habit of getting drunk that causes impairment in the marital relationship. There is no requirement that the defendant be an alcoholic or that she be constantly under the influence of alcohol, but more than an occasional level of intoxication is required. A possible defense to the grounds of habitual drunkenness may be assumption of the risk.

Traditional Law of Adoption

Some jurisdictions also apply the traditional law of adoption, which permits an adoption upon the finding that a parent has abandoned the parent-child relationship. Jurisdictions vary on the use of a subjective versus objective test. When an objective standard is applied, the key is whether the parent has failed to act in a way that indicates a commitment to maintaining the parent-child relationship (e.g., visitation and support). When a subjective standard is applied, the key is whether the parent subjectively intended to abandon the parent-child relationship; objective evidence of a parental loss of interest in the relationship is insufficient.

Negligence - Loss of Chance Doctrine

Some jurisdictions apply the "loss of chance" doctrine. The doctrine is usually applied in a medical malpractice case (e.g., failure to diagnose) when a plaintiff cannot meet the preponderance standard (i.e., more likely than not) for causation because the chance of recovery was already less than 50% before the defendant's negligent conduct. Under this theory, courts allow the plaintiff to recover reduced damages, often measured by an amount equal to the total damages recoverable as a result of the decedent's death multiplied by the difference in the percentage chance of recovery before the negligent misdiagnosis and after the misdiagnosis.

Zoning Estoppel

Some states also recognize the concept of zoning estoppel. A local government entity is estopped from exercising its zoning power when a property owner, relying in good faith on the entity's conduct, has substantially changed its position, such as by incurring significant expenses and obligations, so that it is unjust to deny the property owner the right to use his property in a manner that conflicts with the zoning ordinance. Some states limit zoning estoppel to situations in which the local government entity acts in bad faith, such as when a building permit is issued and then a zoning ordinance is specifically enacted to preclude the property owner from erecting or finishing the building for which the permit was granted.

Ceremonial Marriage - premarital medical testing

Some states also require a form of premarital medical testing. The requirements range from filing a health certificate or certifying the absence of a venereal disease to the testing of blood for certain diseases, including measles, tuberculosis, and sickle cell anemia. While a state can mandate the testing, it cannot condition the issuance of the license on the results of the test. See T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993) (invalidating a Utah statute prohibiting the marriage of an HIV afflicted individual as unconstitutional under the Americans With Disabilities Act).

Rule Against Perpetuities - cy pres doctrine

Some states permit a court to reform a conveyance to prevent it from violating the Rule by applying the cy pres doctrine. Under this doctrine, the court makes changes to the conveyance, such as reducing a time limit for a future interest to take effect to 21 years after the expiration of the last measuring life, in order to come "as near as possible" to the intent of the transferor while staying within the bounds of the Rule. Restatement (Second) of Property: Donative Transfers § 1.5.

Substitution and Replacement of parties in diversity jurisdiction

Sometimes there is a need to exchange parties to a lawsuit. Two processes are in place to do so depending on the circumstances. Rule 25 allows for the substitution of a party due to death or incompetence. In this case, the substituted party does not have to satisfy the diversity requirement. The original party's citizenship remains intact and controlling. A similar doctrine exists when a party must be replaced, such as when the wrong party is named in the complaint. Replacement in such instance is possible as long as the replaced party satisfies the diversity requirement. Notice the subtle distinction between substitution and replacement. Substitution calls for the substituted party to step into the shoes of the original party, whereas replacement removes one party to the lawsuit for another party.

Surrogacy Agreements

Sometimes used interchangeably with the term "surrogacy," a gestational agreement is one in which a woman, known as the gestational mother or surrogate, agrees to carry a pregnancy, either through artificial insemination or by surgical implantation of a fertilized embryo, as a substitute for intended parents who cannot conceive. The intended parents are the individual or individuals who provide the egg or sperm of one or both of them used to implant into the surrogate. The intended parents agree to be the parents of the resulting child, with all the rights and obligations of parenthood. This agreement involves the gestational mother, and her husband if she is married, giving up all parental rights and obligations to the child being conceived. All parties involved must petition the court for approval of the agreement. The court must have jurisdiction, which continues until the resulting child is six months old, and the appropriate government agency must perform a home study of the intended parents to determine their fitness. All parties must have entered the agreement voluntarily and made provisions for the proper medical care associated with the surrogate agreement. The agreement may not limit the right of the gestational mother to make healthcare decisions concerning herself or the embryo she is carrying. Consideration to the gestational mother, if any has been promised, must be reasonable. The agreement may be terminated for cause by any of the parties, including the court, prior to the gestational mother becoming pregnant. An agreement that is not approved by the court is not enforceable. Once the court approves the agreement, a child born to the surrogate mother within 300 days after the assisted reproduction is presumed to be the product of the assisted reproduction. A subsequent marriage of the gestational mother has no effect on the validity of the agreement. The intended parents must file a notice of the child's birth for the court to declare them to be the legal parents. It is important to note that in many of the states that have adopted legislation regarding assisted reproduction, gestational agreements are not given effect.

Special Agent

Special agents generally have limited authority regarding a specific transaction or a string of repetitious acts. Common types of special agents include real-estate agents, subagents, insurance agents, commission merchants, and bailees.

Slander - Special Damages

Special damages require the plaintiff to prove that a third party heard the defendant's defamatory comments and acted adversely to her. Most often, special damages involve an economic loss to the plaintiff, e.g., loss of employment or loss of business, but they also would include such things as the plaintiff's fiancé breaking off the engagement or a friend refusing to host the plaintiff in her home after hearing the defamatory comments.

Installment Contract Tender under UCC

Special rules for installment contracts are addressed in UCC § 2-612. The most important difference between installment contracts and other contracts is that the perfect-tender rule does not apply; instead, the right to reject is determined by a "substantial conformity" standard.

Spousal Maintenance generally

Spousal support (also called maintenance or alimony) is the obligation of one party to provide the other with support in the form of income. It is awarded in a divorce if one spouse cannot provide for his own needs with employment. Alimony payments can be made for a definite or indefinite period of time. Unlike property settlements, alimony obligations cannot be discharged in bankruptcy.

Spousal Maintenance - death

Spousal support generally continues until the death of a spouse. Support is usually not included as a liability of the deceased spouse's estate, unless specified by the court.

Concurrent versus Exclusive Federal Question Jurisdiction

State and federal courts have concurrent jurisdiction of federal question claims, except when Congress expressly provides that the jurisdiction of the federal courts is exclusive, as it has with cases under the Securities and Exchange Act of 1934, patent trademark, and copyright cases, and bankruptcy proceedings. See Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 507 (1962) ("nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law").

Defamation - Absolute Privileges

Statements made under the following circumstances are shielded by absolute privilege: (1) In the course of judicial proceedings; (2) In the course of legislative proceedings; (3) Between husband and wife; and (4) Required publications by radio, television, or newspaper (e.g., statements by a political candidate that a station must carry and may not censor). Statements made in the course of judicial proceedings must be related to the proceedings in order to be privileged; however, no such requirement exists for legislative proceedings.

Defamation - Qualified Privilege

Statements made under the following circumstances are subject to a conditional privilege: (1) In the interest of the publisher (defendant), such as defending his reputation; (2) In the interest of the recipient of the statement or a third party; or (3) Affecting an important public interest. Qualified privileges most often occur in the contexts of employment references, credit reports, and charges and accusations within professional societies and among members of religious and charitable organizations. The burden is on the defendant to prove that the privilege exists. It is, therefore, an affirmative defense. The burden is then on the plaintiff to prove that the privilege has been abused and therefore lost.

Federal Statutory Interpleader and in personam jurisdiction

Statutory interpleader provides for nationwide personal jurisdiction and service of process and permits the federal court to enjoin other federal and state proceedings that may affect the property that is subject to dispute. § 2361.

Marital Property - stock options

Stock options acquired during the marriage are marital property even if they will not be exercised until after the marriage.

Wild Animals - Fearful Reaction

Strict liability applies to an injury caused by a plaintiff's fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal.

Abnormally Dangerous Activity - Scope of Risk

Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. As in the case with negligence, the defendant's liability can be cut off by unforeseeable intervening causes.

Structures on Real Property

Structures built on real property (e.g., walls, dams) and materials incorporated into a structure (e.g., bricks used in making a wall) become part of the realty. The owner of the real property is generally also the owner of the structure on the real property (e.g., an improvement), including any materials used in constructing the structure. Once incorporated into the structure, such materials become an integral part of the real property and are not subject to a separate security interest. UCC § 9-334(a).

Waiver of Subject Matter Jurisdiction

Subject matter jurisdiction cannot be waived or agreed to by the parties, unlike personal jurisdiction

Principal's Duty to Indemnify

Subject to an agreement to the contrary, a principal has a duty to indemnify the agent against pecuniary loss suffered in connection with the agency relationship and within the scope of the agent's actual authority. The principal's duty to indemnify includes expenses and other losses incurred by an agent (such as attorney's fees) in defending an action brought by a third party. A principal is not obligated to indemnify losses that result from an agent's own negligence, illegal acts, or other wrongful conduct.

Sale of accounts, chattel paper, payment intangibles, or promissory notes

Subject to several exceptions, the sale of accounts, chattel paper, payment intangibles, and promissory notes is subject to Article 9. UCC § 9-109(a)(3). Such transactions, however, are not subject to Article 9 if the sale is part of a sale of the business out of which they arose. In addition, the following assignments are not subject to Article 9: i) The assignment of accounts, chattel paper, payment intangibles, or promissory notes for the purposes of collection only; ii) The assignment of a single account, payment intangible, or promissory note in full or partial satisfaction of a preexisting indebtedness; and iii) The assignment of a right to payment under a contract to an assignee who is also obligated to perform under the contract.

Libel - Damages

Subject to the constitutionally imposed limits on damages recoverable in a defamation action, the libel plaintiff need only prove general damages in order to complete the prima facie tort of libel. General damages are any damages that compensate the plaintiff for harm to her reputation. Under the common law, the plaintiff was entitled to recover "presumed damages" as part of general damages. The plaintiff did not need to prove that she actually incurred any damages; her lawyer only needed to invite the jury to award the damages that it believed flowed from the defendant's defamatory communication.

Judicial control of presentation of evidence

Subject to the evidentiary rules, a party is generally free to present evidence in the manner and order that the party feels is most effective. The order of the witnesses and presentation of the case, however, are within the discretion of the court, in order to effectively determine the truth, avoid wasting time, and protect witnesses from harassment. Fed. R. Evid. 611(a).

Subrogation and mortgage obligation discharge

Subrogation is not permitted when the full obligation secured by the mortgage is not discharged. (Note: An obligation may be fully discharged even though the payor pays less than the face value of the obligation if the payor does so as a result of a negotiated settlement with the obligee.) In the case of a partial discharge, a payor who is a subordinate mortgagee may be able to add the amount paid to the balance of the subordinate mortgage and recover the amount upon foreclosure.

Procedure for Physical and Mental Exams

Such an order may be made only upon motion, for good cause shown, and the person to be examined and all parties must be given prior notice specifying the time, place, conditions, and scope of the examination and the identity of the examiner. Rule 35(a)(2). A "suitably licensed or certified examiner" need not be a physician and can include others licensed to report on physical or mental conditions, including psychologists and dentists.

Surface Water

Surface water is water that lies on the surface of the land but that is not part of a lake or waterway. Usually, the water derives from rain or melted snow. In about half of the states, the landowner may make changes or improvements to his land to combat the flow of surface water ("common-enemy doctrine"), though some jurisdictions will hold landowners liable in negligence for harm to another's land. On the other hand, about half of the states prevent the landowner from altering the rate or natural flow of water ("natural flow theory"), though the rule has been modified to permit reasonable changes in water flow determined by balancing the harm against the utility. The growing trend is to take a negligence-based approach and apply the reasonable-use doctrine.

Survival Actions

Survival statutes typically enable the personal representative of a decedent's estate to pursue any claims the decedent herself would have had at the time of her death, including claims for damages resulting from both personal injury and property damage. Such claims often involve damages resulting from the tort that injured the decedent and later resulted in her death.

Tenancy by the Entirety

Tenancy by the entirety is a joint tenancy between married persons with a right of survivorship. The same rules for joint tenancy apply to tenancy by the entirety, plus the joint tenants must be married when a deed is executed or the conveyance occurs (the fifth unity of person). Neither party can alienate or encumber the property without the consent of the other. Tenancy by the entirety is recognized in many jurisdictions, but not in community-property states.

Sufficiency of Buyer's Tender

Tender of payment is sufficient when made by any means or in any manner consistent with the ordinary course of business, unless the seller (1) demands payment in legal tender (i.e., cash) and (2) gives any extension of time reasonably necessary to procure such legal tender.

Termination prior to the end of term of a Tenancy for Years

Termination may also occur before the expiration of the term, such as when the tenant surrenders the leasehold (i.e., the tenant offers and the landlord accepts return of the leasehold). In addition, although at common law the doctrine of independent covenants usually prevented the breach of a covenant in the lease by a tenant or landlord from giving the other party the right to terminate the lease, most states recognize that the breach of certain leasehold covenants (i.e., the tenant's payment of the rent and the landlord's covenants of quiet enjoyment and implied warranty of habitability) can give rise to a right to terminate the lease.

Termination at end of term of Tenancy for Years

Termination occurs automatically upon the expiration of the term; no notice is required. Any right to renew the agreement must be explicitly set out in the lease.

Class Action Fairness Act of 2005

The Class Action Fairness Act of 2005 ("CAFA") made it easier to satisfy federal subject matter jurisdiction for certain large class actions. Subject matter jurisdiction will be met if: i) The class action involves at least 100 members; ii) The primary defendants are not states, state officials, or other governmental entities against whom the district court may be foreclosed from ordering relief; iii) The action does not involve certain securities-related cases, or litigation concerning the internal affairs or governance of a corporation; iv) The amount in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs; and v) Minimum diversity exists. Minimum diversity is satisfied when any member of a class of plaintiffs is a citizen of a state different from any defendant.

Due Process for Personal Jurisdiction

The Due Process Clause also limits a court's exercise of personal jurisdiction over the parties. A court may not exercise personal jurisdiction over a defendant unless the defendant has "minimum contacts" with the state in which the court sits (the forum state), and the exercise of jurisdiction would be fair and reasonable. A court is also required to notify a party of the commencement of an action in which his interests are at stake and provide an opportunity for the party to be heard.

Protected Classes Under FHA

The FHA prohibits discrimination on the basis of race, color, religion, national origin, sex, disability, and familial status. Protected familial status includes having or securing custody of children under the age of 18 and being pregnant. Exemption from familial status protection exists for certain housing for older persons.

Prohibited Practices under FHA

The FHA prohibits taking any of the following actions on the basis of a protected characteristic: (1) Refusing to rent or sell housing; (2) Making housing unavailable; (3) Providing different housing services or facilities; (4) Setting different terms for sale or rental of a dwelling; (5) Falsely denying that housing is available; (6) Refusing to make a mortgage loan or imposing different terms or conditions on a loan; (7) Refusing to allow a disabled tenant to make reasonable modifications to the dwelling or common-use areas at his own expense; (8) Refusing to make reasonable accommodations in rules, policies, practices, or services if necessary for the disabled person to use the housing (e.g., refusing to allow a visually impaired tenant to keep a guide dog in an apartment with a "no pets" policy); (9) Threatening, coercing, intimidating, or interfering with anyone exercising a fair housing right; and (10) Advertising or making any statement that indicates a limitation or preference based on protected characteristics.

Joinder of Parties

The Federal Rules of Civil Procedure provide for joining parties to existing litigation, generally for reasons of efficiency and economy. Joinder may be permissive (pursuant to Rule 20) or compulsory (pursuant to Rule 19).

Examination of a defendant

The Fifth Amendment privilege against self-incrimination protects a defendant in a criminal case from being compelled to testify. A defendant in a criminal case who testifies as to a preliminary question, such as the voluntariness of the defendant's confession, has not opened himself up to cross-examination on other issues in the case. Fed. R. Evid. 104(d).

Child Support - Melson Formula

The Melson formula is similar to the income-shares model, but it takes into account six specific considerations, such as the minimum amount that each supporting parent must retain, the number of the supporting parent's dependents, and a Standard of Living Adjustment (SOLA). See, e.g., Del. Fam. Ct. Civ. R. 52(c).

Parental Kidnapping Prevention Act

The PKPA, despite its name, applies not only to parental kidnapping cases, but also to civil interstate custody disputes, including visitation rights. Under the Supremacy Clause of the U.S. Constitution, the PKPA takes precedence over any conflicting state law. See, e.g., Murphy v. Woerner, 748 P.2d 749 (Alaska 1988). The PKPA discourages forum shopping between states and allocates the powers and duties between states when a child-custody dispute arises. 28 U.S.C. § 1738A. If a jurisdiction fails to follow the PKPA's rules regarding jurisdiction, which are substantially similar to the UCCJEA rules (see § IV.B., Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), supra), the order of the noncompliant jurisdiction is not entitled to full faith and credit. The International Parental Kidnapping Crime Act (IPKCA) prohibits a parent from taking a child outside the United States and obstructing the other parent's physical custody of the child. The Hague Convention requires the return of a child wrongfully taken or retained in a foreign country, and it allows the custodial parent to file suit. The exception to this is if bringing the child back into the country would expose the child to grave physical or psychological harm.

Product Liability - Duty

The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff (i.e., a purchaser, user, or bystander).

Rule Against Perpetuities and Options and Right of First Refusal

The Rule Against Perpetuities does not apply to an option or right of first refusal granted to a current leasehold tenant. In addition, under the Uniform Statutory Rule Against Perpetuities, which has been adopted by a majority of jurisdictions, the Rule does not apply to an option contract or a right of first refusal when the property right is created in a commercial transaction.

Rule Against Perpetuities - Affected Future Interests

The Rule applies only to the following interests: contingent remainders, vested remainders subject to open, executory interests, powers of appointment, rights of first refusal, and options. It does not apply to future interests that revert to the grantor (i.e., reversion, possibility of reverter, right of reentry).

Exceptions to the Rule Against Perpetuities - Option and right of first refusal exception

The Rule does not apply to an option to purchase the property that is held by a current leasehold tenant. If the current tenant can transfer such an option, then this exception does not apply to a subsequent holder of the purchase option. In addition, the Rule does not apply to an option contract or a right of first refusal when the property right is created in a commercial transaction.

Rule Against Perpetuities - "Vest or fail" requirement

The Rule requires that the future interest either vest or fail to vest within the applicable time period. If there is any possibility that it will not be known whether the interest will vest or fail within that period, then the Rule has not been satisfied.

Rule Against Perpetuities - Creation Events

The Rule tests the future interest as of the time that it is created. For example, a future interest created by a will is tested as of the testator's death.

Modern Common Law Parol Evidence

The Second Restatement adopts a different approach to the parol evidence rule. If, under the circumstances, an extrinsic term of an agreement would "naturally be omitted" from a writing, then that term can be introduced, so long as it does not contradict the writing. Restatement (Second) of Contracts § 213.

Diversity Cases and Federal Common Law

The Supreme Court has also recognized the application of federal common law when a "uniquely federal interest" is at stake and a significant conflict exists between that interest and the operation of state law. See, e.g., Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (federal defense contractor could assert a defense recognized under federal common law to a state products liability action brought under diversity jurisdiction because the unique interests of the United States government in contracting for the procurement of military equipment were directly affected and a significant conflict existed with state law); Clearfield Trust Co. v. United States, 318 U.S. 363 (1943) (federal common law governed the federal government's liability for a check issued by the United States that was later stolen and cashed because it was important to have a uniform standard for determining liability on such commercial paper).

Choice of Law in Statutes of Limitations

The Supreme Court has indicated that state statutes of limitations and the rules for tolling state statutes of limitations are substantive in nature and are thus applicable in diversity. Guar. Trust Co. v. York, 326 U.S. 99 (1945).

Enforcement and Compliance with FHA

The U.S. Department of Housing and Urban Development (HUD) plays the lead role in administering the FHA. A person who believes that a violation of the FHA has occurred may file a complaint with HUD and/or file suit in federal court (a court?appointed attorney may be available). Available relief includes actual damages (including humiliation, and pain and suffering), injunctive or other equitable relief (such as making the housing available), and reasonable attorney's fees and costs. If the case is resolved by an administrative hearing, then a civil penalty to vindicate the public interest may be assessed. A federal court may award punitive damages.

Twombly Standard

The U.S. Supreme Court has held that the facts alleged in the complaint must "raise a right to relief above the speculative level...on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). The complaint must state enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.

Contract Missing Terms under UCC

The UCC "fills the gap" for missing terms other than subject matter and quantity, such as the time (reasonable) or place for delivery (the seller's place of business), the time of payment (when the buyer is to receive the goods), the assortment of goods (reasonable choice of the buyer), and even the price for the goods. If the contract omits a price or if the parties agree to set the price in the future and then fail to agree, the UCC supplies a reasonable price at the time of delivery. UCC § 2-305. The contract must have an objective standard for the court to reference. UCC § 2-305.

Contract Cancellation

The UCC characterizes the negation of a contract for the sale of goods as a cancellation. In general, the buyer or seller of goods may cancel the contract of sale upon breach by the other party. Such a remedy does not foreclose the buyer or seller from also pursuing monetary damages. UCC §§ 2-703(f) (seller), 2-711 (buyer).

Trespass to Land - Intent

The defendant need only have the intent to enter the land (or to cause a physical invasion), not the intent to commit a wrongful trespass. In other words, the defendant need not know that the land belongs to another. Mistake of fact is not a defense. Transferred Intent applies.

Acceptance With Different Terms Under the UCC generally

The UCC does not follow the mirror-image rule. Additional or different terms included in an acceptance of an offer do not automatically constitute a rejection of the original offer. Generally, for a sale of goods, an acceptance that contains additional or different terms with respect to the terms in the offer is nevertheless treated as an acceptance rather than a rejection and a counteroffer. An exception exists when the acceptance is expressly conditioned on assent to the additional or different terms, in which case the acceptance is a counteroffer. UCC § 2-207(1).

Implied Warranty of Title

The UCC implies a warranty of title in all sales contracts, providing that the seller automatically warrants that (1) she is conveying good title, (2) the transfer is rightful, and (3) the goods are delivered free from any security interest of which the buyer has no knowledge at the time of the contract. Actual knowledge by the buyer of a security interest on the goods nullifies the warranty of title. UCC§ 2-312(1). The UCC permits disclaimer of the warranty of title, but such disclaimer must be by specific language or a circumstance that gives the buyer reason to know that the seller does not claim rightful title or that the seller is only purporting to sell such rights as the seller or a third person possesses. UCC § 2-312(2).

Entrusting Provisions

The UCC provides that entrustment of goods by the owner to one who sells goods of that kind gives the transferee the power to convey good title to a buyer in the ordinary course. A "buyer in the ordinary course" is one who in good faith and without knowledge of a third party's ownership rights or security interest buys goods from someone selling goods of that kind. UCC § 2-403. "Entrusting" includes any delivery and acquiescence in possession regardless of any condition expressed between the parties and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods has been larcenous. UCC § 2-403(3).

UCCJEA and Law Enforcement

The UCCJEA allows any law-enforcement official to take any lawful action to enforce a custody order or obtain the return of a child (i) if the official believes that the person holding the child has violated a criminal statute, or (ii) if requested to do so by a court of law.

Enforcement of Another State's Child Custody Orders - Expedited Enforcement

The UCCJEA uses a process similar to habeas corpus. After a petition is filed, the respondent must appear in person at a hearing held on the first judicial day after service of the order or, if that date is impossible, on the first judicial day possible. The petitioner will be awarded immediate physical possession of the child unless: (1) The custody or visitation order was not registered; and (a) The issuing court did not have jurisdiction; (b) The order had been stayed or vacated; or (c) The respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or (2) The order was registered and confirmed, but the order was stayed, vacated, or modified.

Assisted Reproduction

The UPA defines "assisted reproduction" as implanting an embryo or fertilizing a woman's egg with a man's sperm without sexual intercourse. UPA § 102. This may include in vitro fertilization, when fertilization occurs outside the woman's body, and the fertilized egg is then implanted into the woman's uterus. The donor is the man or woman who produces the sperm or egg used in assisted reproduction, but who is not considered the parent of the prospective child. Maternity is determined by the woman who gives birth to the child, unless a gestational agreement states otherwise. UPA § 201. Likewise, the husband of the woman who is determined to be the mother of the child is the child's father, unless the husband pursues an action to declare that he did not consent to the assisted reproduction. This action must commence within two years after the husband learns of the birth of the child. UPA §705. If either the egg donor or sperm donor dies before implantation of the embryo, or before conception, that donor is not a parent of the resulting child, unless a writing by the deceased party states otherwise. UPA §707.

Uniform Deployed Parents Custody and Visitation Act

The Uniform Deployed Parents Custody and Visitation Act (UDPCVA), enacted in 2012, integrates with the UCCJEA but applies specifically to parents who are also service members. Among other things, the UDPCVA provides that when imminent deployment is not an issue, courts cannot use a parent's deployment as a negative factor in determining the best interests of the child. The act also sets out a procedure for out-of-court custody agreements, sets guidelines for temporary custody, and prohibits entry of permanent custody orders before or during deployment without the service-member parent's consent.

Intentional Tort Defense - Third-Party Injuries

The actor is not liable for injuries to bystanders that occur while he is acting in self-defense, so long as those injuries were accidental, rather than deliberate, and the actor was not negligent with respect to the bystander.

Adverse Possession - Future Interests

The adverse possessor acquires the estate held by the person who has legal possession at the time that the adverse possession began. In other words, the adverse possession period does not run against future interests that exist at the time that the adverse possession begins, but it does apply to future interests created from a fee simple absolute estate after the adverse possession has begun.

Adverse Possession - below the surface area

The adverse possessor acquires the rights to the subsurface (e.g., mineral rights), unless those rights belong to a third party.

Adverse Possession - Hostile

The adverse possessor must possess the land without the owner's permission and with the intent to claim the land as his own against the claims of others for it to be considered "hostile." The majority of jurisdictions do not require that the possession be hostile in the sense that the possessor purposefully seeks to defeat the owner's title because the intent of the possessor is irrelevant. In jurisdictions that consider intent, some will grant title to a possessor who, in good faith, thought he had the legal right to possess (i.e., believed that the property was not owned or thought that he owned the property). Others require the intent to be based on bad faith (i.e., aggressive trespass).

Principal's Right to Control

The agency relationship is, by definition, one in which the agent acts on the principal's behalf and is subject to the principal's control. Therefore, a principal has the right to control the acts of an agent working on the principal's behalf, including third-party negotiations. However, a principal cannot require agents to perform illegal acts or acts against public policy.

Circumstances That Terminate Agency Relationship

The agency relationship terminates when the changed circumstance should cause the agent to reasonably believe that the principal no longer consents to the agent acting on the principal's behalf. Examples: (1) A change in a statute relating to the subject matter; (2) Insolvency of either party; (3) A dramatic change in business conditions; (4) The destruction of the subject matter of the agency relationship; or (5) A disaster (natural or unnatural).

Agent's Duty to Not Usurp Opportunity

The agent's duty not to usurp a business opportunity is a component of the duty of loyalty. It arises when either the nature of an opportunity or the circumstances under which the agent learned of it require the agent to offer the opportunity to the principal. Thus, the agent may not seek or accept monetary or beneficial gain from a third party during the course of the agency without the principal's consent. The prohibition on the agent benefitting monetarily from transactions conducted for the principal is often referred to as the "agent's duty to account for profits."

Agent's Duty to Refrain From Material Benefit

The agent's duty of loyalty requires her to refrain from acquiring a material benefit in connection with transactions or other actions undertaken on the principal's behalf, unless the principal consents to the agent acquiring the benefit.

Description of Collateral in Security Agreement

The agreement must describe the collateral. The description of the collateral need only reasonably identify the collateral. It may specifically list the collateral, such as by identifying the object and its manufacturer, model and serial number, but such an exact and detailed description is not mandated. A description of the Article 9 type of collateral (e.g., "all of debtor's equipment" or "debtor's entire inventory") is usually sufficient unless the collateral is consumer goods or a commercial tort claim, but a super-generic description of collateral as "all the debtor's assets" or "all the debtor's personal property" is not sufficient. UCC § 9-108.

Diversity Jurisdiction Amount in Controversy

The amount in controversy must exceed the sum or value of $75,000, exclusive of interest, costs, and collateral effects of a judgment. Although interests and costs are excluded from the amount in controversy, attorney's fees may be made part of the amount in controversy if the fees are recoverable by contract or statute. Punitive damages, as well, may be permitted to be made part of the amount in controversy. The amount in controversy is determined at the time the action is commenced in federal court, or, if the action has been removed to federal court, at the time of the removal. The party seeking to invoke federal court jurisdiction must allege that the action satisfies the amount-in-controversy requirement. In the case of injunctive relief, when it is difficult to assess a dollar amount, the court determines both the value of the plaintiff's harm if an injunction is not imposed and the defendant's cost of complying with an injunction. If the amount of either exceeds $75,000, then the amount-in-controversy requirement is satisfied. § 1332(a).

Strict Product Liability - Component Parts

The commercial supplier of a component, such as sand used in manufacturing cement or a switch used in an electrical device, is subject to liability if the component itself is defective, but not when the component is incorporated into a product that is defective for another reason. However, the commercial supplier of a component may be liable if that supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration.

Child Support - Voluntary reduction in income

The amount of child support generally may not be reduced simply because of a voluntary reduction in the obligor's pay. In these circumstances, the court will usually set child support obligations based on the obligor's earning capacity, which is the amount that the person could realistically earn under the circumstances in consideration of the person's age, mental health, and physical condition. However, in some jurisdictions, a voluntary reduction of the obligor parent's income may justify a reduction of child support obligations if certain conditions are met. All jurisdictions allowing a modification due to voluntary reductions in the obligor's income require the obligor parent to show that the reduction was made in good faith and not for the purpose of depriving the child or punishing the custodial parent. Some courts require an additional finding that the child will not suffer a significant hardship from the modification.

Negligence - Limitations to Recovering for Third Party

The amount of damages recoverable in a derivative action (an action arising solely because of tortious harm to another) for interference with family relationships is reduced in a comparative-fault jurisdiction (and eliminated in a contributory-negligence jurisdiction) by the injured family member's contributory negligence. Thus, if the damages recovered in the injured family member's own action are reduced by the plaintiff's comparative fault, then the damages recoverable by his family members in their derivative action will also be reduced.

Admissions or Denials in Answer

The answer must admit or deny the allegations of the plaintiff's complaint. Rule 8(b). If the defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of an allegation, then the defendant must say so in the answer. This response has the effect of a denial, pursuant to Rule 8(b). Before pleading lack of sufficient knowledge, however, the defendant must make a reasonable investigation into whether the information exists and how difficult it would be to ascertain.

Affirmative Defenses in Answer

The answer must state any avoidance or affirmative defense that the defendant (or responding party) has, or that defense is deemed waived. Rule 8(c) lists some such affirmative defenses: i) Accord and satisfaction; ii) Arbitration and award; iii) Assumption of risk; iv) Contributory negligence; v) Duress; vi) Estoppel; vii) Failure of consideration; viii) Fraud; ix) Illegality; x) Injury by fellow servant; xi) Laches; xii) License; xiii) Payment; xiv) Release; xv) Res judicata; xvi) Statute of Frauds; xvii) Statute of limitations; and xviii) Waiver. This list is nonexclusive; thus, if there are other affirmative defenses that the party has in addition to the ones listed above (e.g., novation, qualified immunity), even if they are inconsistent, then they must be raised in the answer as well. A party may raise as many alternative (and inconsistent) defenses as are applicable.

Negligence - Emergency Situations

The applicable standard of care in an emergency is that of a reasonable person in the same situation. In other words, less may be expected of the reasonably prudent person who is forced to act in an emergency, but only if the defendant's conduct did not cause the emergency.

Measuring Lives Under The Rule Against Perpetuities

The application of the Rule is determined by one or more measuring (or validating) lives. A measuring life must be human, but there can be more than one measuring life, provided the number of such lives is reasonable. If a measuring life is not specified, then the measuring life is the life directly related to the future interest that is subject to the Rule.

Condition of Contract Satisfaction

The approach to determine whether a condition is satisfied is an objective standard based upon whether a reasonable person would be satisfied. In most contracts, it is easy to conclude that all conditions have been satisfied. In contracts based upon aesthetic taste, however, the occurrence of the condition may be more difficult to determine. When the aesthetic taste of a party is a condition of satisfactory performance (e.g., painting a family portrait), satisfaction is determined under a subjective standard. The party must use good faith, or a claim of dissatisfaction can be a breach.

Common-Interest Ownership Community Association

The association that is created to manage the affairs and property of a common-interest ownership community, including the enforcement of covenants and easements, may take various forms, such as an unincorporated association, trust, or partnership, but it is typically a corporation. Restatement (Third) of Property: Servitudes § 6.2(3), cmt. c.

Negligence - Bailor

The bailor has a duty to inform the gratuitous bailee only of known dangerous defects in personal property but must inform a bailee for hire of defects that are known or should have been known by the bailor had he used reasonable diligence.

Protections under CAFA

The benefit to filing under CAFA is the various protections afforded to the class members. The court will generally protect members against loss in consumer class actions, ensure that the settlement is fair to the members, and ensure that the settlement is equally distributed. It will also notify federal and state officials of the proposed settlement. If no notice is given, then the class member may choose not to be bound by the agreement.

Local and Transitory Actions

The common law created a distinction between local and transitory actions for the purposes of venue. In general, local actions involve title to property and are required to be brought in a court where the property is located. Transitory actions involve a cause of action based on events that could have taken place anywhere. Many state venue statutes continue to apply this distinction; however, in federal court, venue is determined without regard to whether the action is local or transitory in nature. § 1391(a)(2).

Principal's Loss of Capacity

The common-law rule is that an individual principal's loss of capacity terminates the agent's actual authority. There is a modern trend holding that actual authority does not terminate until the agent has notice that the principal has been adjudicated to lack capacity or that the principal's loss of capacity is permanent.

Voluntary Termination of Parental Rights

The biological parents may voluntarily give up their rights as parents of the minor child and consent to the child's adoption by the adoptive parents. Some jurisdictions have created adoption registries for the purpose of determining the identity and location of putative fathers and providing notice in the event of an adoption. A putative father's failure to register within a statutorily prescribed period of time constitutes a waiver of his right to notice of the adoption and irrevocably implies his consent to the adoption. See, e.g., In Re J.D.C., 751 N.E.2d 747 (Ind. App. 2001); Robert O. v. Russell K., 604 N.E.2d. 99 (N.Y. Ct. App. 1992). Termination in this fashion typically applies only to cases in which the father and child never developed a relationship. A situation in which the child is a newborn gives the unwed father a constitutional right to have an opportunity to develop a quality relationship with the child. The right of an unwed father to object to an adoption may be denied if the father does not demonstrate a commitment to the responsibilities of parenthood, but it cannot be denied if such a commitment has been made. Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979).

Burden of Persuasion

The burden of persuasion (or standard of proof) is the degree to which legally sufficient evidence must be presented to the trier of fact. For example, in a civil case, this burden usually lies with the plaintiff to prove the allegations in the complaint and with the defendant to prove any affirmative defenses. This burden does not shift. Typically, determination of whether it has been met rests with the trier of fact.

Negligence - But-For Fails

The but-for test of causation often will not work if: (1) There are multiple tortfeasors and it cannot be said that the defendant's tortious conduct necessarily was required to produce the harm; (2) There are multiple possible causes of the plaintiff's harm, but the plaintiff cannot prove which defendant caused the harm; or (3) The defendant's negligent medical misdiagnosis increased the probability of the plaintiff's death, but the plaintiff probably would have died even with a proper diagnosis.

Buyer's Remedy Under UCC When Can't Cover

The buyer can also obtain identified, undelivered goods from the seller if: (1) The buyer is unable to effect cover; (2) The circumstances reasonably indicate that such effect will be unavailing; or (3) The goods have been shipped under reservation, and satisfaction of the security interest in the goods has been made or tendered. UCC § 2-716(3).

Buyer in the ordinary course - new value

The buyer can purchase goods for cash, on credit, or in exchange for other goods, but does not achieve BOCB status if he acquires the goods in total or partial satisfaction of a money debt. UCC § 1-201(b)(9).

Buyer Liquidated Damages Under UCC

The buyer can receive damages in the amount provided in a liquidated damages clause, provided the amount is reasonable. UCC § 2-718(1).

Specific Performance and Real Estate

The buyer is entitled to specific performance for a seller's breach of a contract to sell a real property interest because the buyer's remedy at law is considered inadequate due to the unique nature of land. Under the theory of mutuality of remedies, the seller is also permitted to seek specific performance and force the buyer to purchase a real property interest, although some courts have rejected this theory because the seller typically receives money rather than real property. When the buyer seeks specific performance with respect to property for which there is a title defect (e.g., an encumbrance), the buyer may also obtain an abatement in the purchase price to compensate the buyer for the defect.

Buyer Specific Performance under UCC

The buyer may demand specific performance for unique goods. In addition, specific performance may be had in other proper circumstances. An inability to cover is strong evidence of such circumstances. The court may grant specific performance on terms and conditions that the court deems just. UCC §2-716(1).

Buyer Damages under UCC

The buyer may recover the market price minus the contract price. The market price is the price that existed at the time of the breach at the place where tender was to occur under the contract. When the seller has anticipatorily breached the contract, the market price is measured as of the time that the buyer learned of the breach. Most courts treated this time as the time that the buyer learned of the repudiation. UCC § 2-713.

Buyer of an Instrument or Document and Priority

The buyer of a negotiable instrument who qualifies as a holder in due course under Article 3, the buyer of a negotiable document of title that has been duly negotiated under Article 7, and a protected purchaser of a security under Article 8 may take free of a perfected security interest in the instrument, document of title, or security. UCC § 9-331. In addition, a purchaser of an instrument has priority over a security interest in the instrument perfected by a method other than possession if the purchaser gives value and takes possession of the instrument in good faith and without knowledge that the purchase violates the rights of the secured party. UCC § 9-330(d).

Buyer's Insurable Interest in Goods

The buyer of goods obtains an insurable interest in the goods as soon as the goods are identified in the contract. Identification can be made at any time by the parties' explicit agreement. In the absence of such an agreement, identification occurs when the contract is made if it is for the sale of goods already existing and identified; for future goods, identification occurs when the goods are shipped, marked, or otherwise designated by the seller as the goods to which the contract refers. UCC § 2-501(1).

Levy assessments and charge fees in common-interest ownership

The community has the power to levy assessments against individually owned property and charge reasonable fees for services or for the use of common property. This power tends to be specifically granted by statute or by covenants in the declaration and is enforceable without regard to common-law rules regarding privity or the relationship of these covenants to ownership of the land (i.e., "touch and concern" requirements). The assessments may be allocated among the individually owned properties on any reasonable basis and are secured by a lien against those properties. An assessment generally survives a foreclosure sale and is not terminated by a tax sale or a sale in bankruptcy proceedings. An assessment may be invalid if the board fails to comply with required procedures, but a community member is not entitled to withhold payment of assessments to offset a default by the association in fulfilling its duties to the member or to use an agreement with a developer as a defense to nonpayment of the assessment. Restatement (Third) of Property: Servitudes § 6.5(1), (2), cmts. a, e.

Complaint Requirements generally

The complaint is the initial pleading in an action filed by the plaintiff and serves as notice to the opposing party. Under Rule 8(a), a complaint (or any pleading in which a claim is made) must include: i) A short and plain statement of the grounds that establish the court's subject matter jurisdiction; ii) A short and plain statement of the claim establishing entitlement to relief; and iii) A demand for judgment for the relief sought by the pleader.

Drafting Mortgage Documents

The completion of standard mortgage loan documents by non-attorney employees of the mortgage lender is not the practice of law, even if the lender charges the borrower a reasonable fee for preparation of such documents, so long as the employees are not exercising legal discretion in completing the documents. Perkins v. CTX Mortg. Co., 969 P.2d 93 (Wash. 1999).

Defamation - Public Figure

The constitutional requirements are the same when the plaintiff is a public figure as when she is a public official. There are two ways in which a plaintiff may be categorized as a public figure: i) General purpose public figures—plaintiffs who occupy positions of such persuasive power and influence in society that they are deemed public figures for all purposes; and ii) Limited purpose or special purpose public figures—plaintiffs who thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. These plaintiffs are treated as public figures if the defamatory statement relates to their participation in the controversy, but they are treated as private figures if the defamation relates to any other matter.

Spousal Maintenance - standard of living

The couple's standard of living during the marriage is considered.

Sanctions Procedure

The court cannot impose a monetary sanction on its own, unless it issued an order to show cause with regard to the matter before voluntary dismissal or settlement of the claims made by or against the party who is, or whose attorneys are, to be sanctioned. The court also is not permitted to impose a monetary sanction against a represented party for violating the requirement that the claims, defenses, and other legal contentions of the paper be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law. An order imposing a sanction under Rule 11 must describe the sanctioned conduct and explain the basis for the sanction. Rule 11(c)(6).

CAFA limitations of jurisdiction

The court is required to repudiate jurisdiction when the primary injuries were incurred in the state in which the action was filed, when more than two?thirds of the proposed plaintiffs are citizens of the state in which the case was filed, and when significant relief is sought from a defendant who is a citizen of the state in which the case was filed. If between one-third and two-thirds of proposed plaintiffs and the primary defendants are citizens of the state in which the case was filed, then the court is given discretion to decline jurisdiction.

Excusing a Juror

The court may excuse a juror for good cause not only prior to the submission of the case to the jury but also during jury deliberations. Rule 47(c). Sickness, family emergency, or juror misconduct can constitute good cause for excusing a juror, but refusal of a juror to agree with other members of the jury does not. Notes of Advisory Committee on 1991 amendments to Rule 47.

Timing of jury instructions

The court may instruct a jury regarding its verdict at any time before the jury is discharged. Consequently, the court may instruct the jury before as well as after the lawyers' closing arguments. The court may, where the need arises (e.g., in response to questions submitted to the court by the jury), again instruct the jury after the jury has retired for deliberation. Rule 51(b)(1).

Warrant for Child Custody

The court may issue a warrant, upon a petitioner's request, for the petitioner to take physical possession of a child if it finds that the child is likely to suffer serious physical injury or be removed from the state.

Timeliness of Intervention

The decision of whether the nonparty timely moved to intervene is in the discretion of the trial court, considering factors such as: i) The length of time the movant knew or reasonably should have known that its interest was threatened before moving to intervene; ii) The prejudice to existing parties if intervention is permitted; and iii) The prejudice to the movant if intervention is denied.

Party's objections to court's proposed jury instructions

The court must provide the parties with an opportunity to object to the court's proposed instructions on the record and out of the jury's hearing before the instructions and arguments are delivered. Rule 51(b)(2). If the court fails to do this, a party's objection is timely if it is made promptly after learning that an instruction has been or will be given or a request has been refused. Rule 51(c)(2). The party's objection must be made on the record and specifically state the instruction or request objected to and the grounds for the objection. Rule 51(c)(1).

Standard for Judgment as Matter of Law

The court must view the evidence in the light most favorable to the opposing party and draw all reasonable inferences from the evidence in favor of the opposing party. It may not consider the credibility of witnesses or evaluate the weight of the evidence, and it must disregard all evidence favorable to the moving party that the jury is not required to believe. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). If reasonable persons can draw different inferences, then the issue is for the jury to decide, and the motion cannot be granted.

Amendment by Leave of court

The court should freely give leave to amend a pleading when justice so requires. Rule 15(a)(2). Generally, a court will first determine if the proposed amendment to the pleading would be futile because it would immediately be subject to dismissal under Rule 12(b)(6). If it would not, the amendment will generally be permitted unless the amendment would result in undue prejudice to the opposing party. However, when the court has issued an order regarding the trial plan after a final pretrial conference, which may include the issues for trial, the court may modify that order only to prevent manifest injustice. Rule 16(e).

Battle of the Forms - Different Terms

The courts in different jurisdictions disagree as to the result when different terms are included in the merchant offeree's acceptance. A few jurisdictions treat different terms the same as additional terms and apply the rule described above. Most, however, apply the "knock-out" rule, under which different terms in the offer and acceptance nullify each other and are "knocked out" of the contract. When gaps are created after applying the knock-out rule, the court uses Article 2's gap-filling provisions to patch the holes.

Touch and Concern Requirement for Covenant running with the land

The covenant must "touch and concern the land," which generally means that the person seeking enforcement must establish that the benefit or burden affects both the promisee and the promisor as owners of land and not merely as individuals. The modern trend shifts the burden by superseding the touch-and-concern requirement. Instead, the covenant is presumed valid unless it is contrary to public policy, imposes an unreasonable restraint on alienation or trade, or is unconscionable. If it does none of those things, the covenant is valid unless it is illegal or unconstitutional. Restatement (Third) of Property: Servitudes §3.2.

Debtor's Risk of Loss

The debtor bears the risk of accidental loss of, or damage to, the collateral; consequently, the debtor is liable to the secured party for any deficiency in effective insurance coverage. UCC § 9-207(b)(2).

Debtor's Authorization of Financing Statement

The debtor's signature is not required on the financing statement. The debtor must authorize the filing of a financing statement for the statement to be effective. If the debtor has authenticated the security agreement, then this authentication constitutes an authorization to file the financing statement with respect to the collateral covered by the agreement (i.e., an "ipso facto authorization"). Alternatively, the debtor may specifically authorize the filing of the financing statement in an authenticated record. (Note: A debtor is presumed to consent to the filing of a financing statement when the secured party seeks to perfect, by filing, a security interest in any identifiable proceeds of collateral, whether or not the security agreement expressly covers proceeds.) UCC § 9-509(a,b). A person who files a financing statement without the debtor's authorization is liable for actual and statutory damages. UCC § 9-625(b).

On the merits in res judicata

The decision must have been made in consideration of the merits of the claim or defense, rather than on technical grounds. A claim or defense does not actually need to have been raised in the earlier action to be barred in the later action. If the claim or defense could have been raised in the earlier action, it will be precluded in the later action. A judgment on the merits includes judgment entered after a full trial, summary judgment, judgment as a matter of law, and default judgment where the court has jurisdiction over the subject matter and personal jurisdiction over the parties.

Intentional Tort - Intent

The defendant acts intentionally if (1) he acts with the purpose of causing the consequences of his act; or (2) he acts knowing that the consequence is substantially certain to result.

Conversion - Interference

The defendant interferes with the plaintiff's chattel by exercising dominion or control over it. Examples of acts of conversion include wrongfully acquiring, transferring, or detaining; substantially changing; severely damaging or destroying; or misusing the chattel. Note that if the original acquisition of the chattel was not wrongful, then the plaintiff must demand the return of the chattel before she sues for conversion.

Negligence Per Se - Greater Risk Of Harm

The defendant may be able to avoid liability by proving that compliance would have involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency).

Intentional Interference with Contract without breach

The defendant may be liable whenever he prevents a party from fulfilling its contractual obligations or adds to the burden of a party's performance, even if the defendant does not induce the party to breach its contractual obligation. To be considered tortious, a defendant's actions must substantially exceed fair competition and free expression, such as persuading a bank not to lend money to a competitor.

False Imprisonment - Methods of Confinement

The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or the plaintiff's property), or by the invalid use of legal authority, duress, or the failure to provide a reasonable means of safe escape.

Intentional Tort Defense - Deadly Force

The defendant may use deadly force only if he has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted upon him.

False Imprisonment - Intent

The defendant must act with the purpose of confining the plaintiff or act knowing that the plaintiff's confinement is substantially certain to result. If the confinement is due to the defendant's negligence rather than his intentional acts, then the defendant may be liable under the rules governing negligence but not under the intentional tort of false imprisonment. If the imprisonment occurs by pure accident and involves neither the defendant's intent nor his negligence, then there is no recovery. The doctrine of transferred intent applies to false imprisonment.

Intentional Misrepresentation - Intent to Induce Reliance

The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation.

Intentional Misrepresentation - Scienter

The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness.

IIED - Intent

The defendant must intend to cause severe emotional distress or must act with recklessness as to the risk of causing such distress. Transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant's extreme conduct harms another.

Assault - Intent

The defendant must intend to cause the plaintiff's apprehension of an imminent harmful or offensive contact or intend to cause harmful or offensive bodily contact with the victim. The defendant's own words, however, can negate the intent. Transferred intent is available.

Conversion - Intent

The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary. Mistake of law or fact is no defense (e.g., a purchaser of stolen goods is liable to the rightful owner). Accidentally damaging the plaintiff's chattel is not conversion if the defendant had permission to use the property.

Trespass to Land - Physical Invasion

The defendant need not personally enter onto the plaintiff's land; intentionally flooding the plaintiff's land, throwing rocks onto it, or intentionally emitting particulates into the air over the land will each suffice. Additionally, the defendant's failure to leave the plaintiff's property after his lawful right of entry has expired constitutes a physical invasion. A trespass may be committed on, above, or below the surface of the plaintiff's land.

Deed Description of Property

The description of the property must be reasonably definite, but extrinsic evidence is admissible to clarify. A habendum clause (e.g., "to have and to hold") in a deed defines the interest conveyed. When there is an irreconcilable difference between the granting clause and the habendum clause, the granting clause prevails. Descriptions by metes and bounds or by street address are acceptable but not required to sufficiently describe the property. When there is a conflict between descriptions of the property in the deed, descriptions based on monuments (e.g., "from oak tree east to the tool shed") are given priority over area descriptions (e.g., "100 acres").

Collateral estoppel - essential to the judgment

The determination of the issue must have been essential to the prior judgment. Generally, an issue that constitutes a necessary component of the decision reached will be considered essential to the judgment.

Costs of Removal

The district court's order remanding the case may require payment of costs, including attorney's fees, incurred as a result of the removal. § 1447(c). The Supreme Court has held that, absent unusual circumstances, federal courts may award attorney's fees under § 1447(c) only when the removing party lacked an objectively reasonable basis for seeking removal. Martin v. Franklin Capital Corp., 546 U.S. 132 (2005).

Anticipatory Repudiation

The doctrine of anticipatory repudiation is applicable when a promisor repudiates a promise before the time for performance is due. The repudiation must be clear and unequivocal (as opposed to mere insecurity) and may be by conduct or words.

Res Judicata generally

The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. New Hampshire v. Maine, 532 U.S. 742, 748 (2001).

Frustration of Purpose in Contract

The doctrine of frustration of purpose applies when an unexpected event arises that destroy one party's purpose in entering into the contract, even if performance of the contract is not rendered impossible. The frustrated party is entitled to rescind the contract without paying damages. The event that arises must not be the fault of the frustrated party, and its nonoccurrence must have been a basic assumption of the contract. If this is the case, the party's duty to render performance is discharged, unless the language of the agreement or the circumstances otherwise indicate. Restatement (Second) of Contracts § 265. The occurrence need not be completely unforeseeable to the parties. It must, however, be unexpected and not a realistic prospect. For the doctrine of frustration of purpose to be applicable, the frustration must be so severe that it is not within the assumed risks inherent under the contract. Restatement (Second) of Contracts § 261, comments b and c, and § 265, comment a.

Collateral Estoppel generally

The doctrine of issue preclusion, often called "collateral estoppel," precludes the re-litigation of issues of fact or law that have already been necessarily determined by a judge or jury as part of an earlier claim.

Effect of Substantial Performance of a Condition of a Contract on Damages

The doctrine of substantial performance permits a party who substantially performs to recover on the contract even though that party has not rendered full performance. In general, the party who substantially performed her contractual obligations can recover the contract price minus any amount that it will cost the other party to obtain the promised full performance. A party who has not substantially performed generally cannot recover damages based on the contract, but she may be able to recover through restitution. The other side to substantial performance is material breach. A party who fails to substantially perform is in material breach.

NIED - Special Relationship

The duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is a special relationship between the plaintiff and the defendant. The most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative.

Continuation Statement

The effect of a financing statement may be extended by filing a continuation statement, which extends the effect of the financing statement for another five-year period. The continuation statement must be filed within six months prior to the expiration of the financing statement and requires only the authorization of the secured party, not the debtor. If a continuation statement is not filed, a financing statement ceases to be effective and any security interest or agricultural lien that was perfected by the financing statement becomes unperfected, unless the security interest is perfected otherwise. In addition, the security interest (unless otherwise perfected) is treated as never having been perfected as against a purchaser of the collateral for value. UCC §§ 9-515(c)-(e); 9-509(d).

Marriage and Law of the Situs

The effect of marriage on an interest in land owned by a spouse at the time of the marriage or acquired by a spouse during the marriage is generally governed by the conflict-of-laws rules of the situs state. The law of the situs generally governs interests in land owned by a spouse at the time of the marriage. When dealing with property acquired during marriage, the law of the spouses' domicile when the property was acquired determines whether the property is marital or separate property, and the law of the situs determines the rights of a third party (e.g., a creditor) to the property. Restatement (Second) of Conflict of Laws §§ 233, 234; Powell on Real Property § 53.06. With regard to the existence and extent of a common-law or statutory interest, including a forced share interest, of a surviving spouse in the land of the deceased spouse, the general rule applies. Restatement (Second) of Conflict of Laws §§ 241, 242.

Incorrect Indexing of a Financing Statement

The effect of the filing office's incorrect indexing of a financing statement does not affect the effectiveness of the filed financing statement. UCC § 9-517, incl. cmt. 2. The risk of a filing-office error rests on those who search the files rather than on those who file a financing statement.

Private Nuisance - Regulatory Compliance

The fact that a defendant's behavior is in compliance with a statute, local ordinance, or administrative regulation is not a complete defense to a nuisance action. However, such statutory or regulatory compliance may be admitted as evidence as to whether the interference with the plaintiff's use and enjoyment of her land is unreasonable. For example, zoning regulations are typically regarded as admissible evidence in actions for nuisance, but they are not determinative.

Res Ipsa Loquitur - Third Restatement

The fact-finder may infer that the defendant has been negligent when: (1) The accident that caused the plaintiff's harm is a type of accident that ordinarily happens as a result of negligence of a class of actors; and (2) The defendant is a relevant member of that class of actors. However, because the Third Restatement was only recently adopted, few courts have adopted this precise articulation of the doctrine.

Fair Housing Act generally

The federal Fair Housing Act (FHA) (Title VIII of the Civil Rights Act of 1968), 42 U.S.C. §3601 et seq., prohibits discrimination in the sale, rental, and financing of homes and in other housing-related transactions (such as advertising, homeowner's insurance, and zoning). Owner-occupied buildings with no more than four living units (including the owner's living unit), single-family housing sold or rented without the use of a broker or advertising, and housing operated by religious organizations and private clubs that limit occupancy to members may be exempted from the FHA in certain circumstances.

Federal Religious Land Use and Institutionalized Persons Act

The federal Religious Land Use and Institutionalized Persons Act prohibits a land?use regulation that imposes a substantial burden on the exercise of religion unless the government proves that the burden is in furtherance of a compelling governmental interest and is the least-restrictive means of furthering that interest. In addition, this Act prohibits a land-use regulation that discriminates against a religious assembly or institution; that totally excludes religious assemblies from a jurisdiction; or that unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. § 2000cc.

Attachment of Chattel in real property

The fee simple owner of real property is free, subject to governmental land-use restrictions, to make improvements to the real property, including fixtures. For the holder of a life estate or a tenant, the right to make improvements to real property (ameliorative waste) is somewhat circumscribed.

Financing Statement Description of the collateral

The financing statement must contain a description of the collateral that sufficiently indicates the collateral. This requirement can be satisfied by a description that meets the requirements for the security agreement. See § II.D. Security Agreement, supra. Alternatively, when the security interest covers all of the debtor's assets or personal property, the financing statement, unlike the security agreement, can contain a broad statement to that effect (e.g., "this financing statement covers all of the debtor's assets" or "this financing statement covers all of the debtor's personal property") without identifying each of the types of collateral covered. UCC § 9-504.

"Only-if" rule for financing statements

The financing statement must reflect the name on the debtor's current (i.e., unexpired) driver's license or state-issued identification card (issued by the state in which the financing agreement will be filed). If the debtor does not have a driver's license, the filer must use either the individual name of the debtor (i.e., the debtor's current legal name) or the debtor's surname and first personal name. A majority of jurisdictions have adopted this approach.

Issues Under Law of the Situs

The following real property issues are usually governed by the general rule: (1) The validity of and rights created by a contract for the transfer of an interest in land by sale or lease; (2) Whether a conveyance (e.g., a deed) transfers an interest in land, and the nature of the interest transferred (e.g., fee simple absolute, easement, real covenant); (3) Whether there has been a transfer of an interest in land by operation of law (e.g., adverse possession, prescription), and the nature of the interest transferred; (4) Whether a lien (e.g., a mortgage) creates an interest in land, and the nature of the interest created; (5) The method for foreclosure of a mortgage on land and the resulting interests; (6) Whether an interest in land has been transferred by the exercise of a power created by the operation of law (e.g., transfer of land by the executor of a will) or a power of attorney, and the nature of the interest transferred; (7) The existence and extent of an equitable interest in land; (8) The passage of an interest in land upon the death of the owner by intestate succession; and (9) Whether an interest in land escheats to the state. Restatement (Second) of Conflict of Laws §§ 189, 223, 225-236, 241-243.

Future interest in third party in a fee simple subject to an executory interest

The future interest held by the third party is an executory interest. An executory interest is freely alienable by the third party, both during his life and upon his death. Unlike the corresponding future interest in the grantor (right of entry), the executory interest automatically comes into existence; there is no need for the third party to take any action (e.g., an eviction action).

Calculating Compensatory Damages

The general expectation formula can be computed as follows: Damages = loss in value + other loss - cost avoided - loss avoided The "loss in value" is the expectation. The "other loss" is any consequential and incidental damages. The "cost avoided" is the additional costs that the nonbreaching party can avoid by rightfully discontinuing performance under the contract as a result of the other party's breach. "Loss avoided" is the beneficial effect of the breach due to the nonbreaching party's ability to salvage or reallocate resources that otherwise would have been devoted to performing under the contract. Loss avoided is subtracted only if the savings results from the injured party not having to perform rather than from some unrelated event. Restatement (Second) of Contracts § 347.

Calculating Expectation Damages

The general expectation formula can be computed as follows: Expectation Damages = loss in value + other loss - cost avoided - loss avoided "Loss in value" is the difference between the performance that the nonbreaching party should have received under the contract and what was actually received, if anything. "Other loss" includes consequential and incidental damages, if any. "Cost avoided" is the additional cost that the nonbreaching party can avoid by rightfully discontinuing performance under the contract as a result of the other party's breach. "Loss avoided" is the beneficial effect of the breach due to the nonbreaching party's ability to salvage or reallocate resources that otherwise would have been devoted to performing under the contract. Loss avoided is subtracted only if the savings results from the injured party not having to perform rather than from some unrelated event. Restatement (Second) of Contracts §347.

Negligence - Compensatory Damages

The general measure of compensatory damages is compensation that would make the victim whole, as if she had never suffered the injury.

Parents and Children - Vicarious Liability

The general rule is that parents are not vicariously liable for their minor child's torts. Exceptions to this general rule include situations in which: (1) The child commits a tort while acting as the parent's agent; (2) State statutes provide for the liability of parents when children commit specified acts such as vandalism or school violence; or (3) State statutes require that a parent, when he signs for the child's driver's license application, assumes liability for any damages caused by negligent acts that the child commits while driving a car.

Parties to a deed

The grantor and grantee must be identified. A deed that does not identify the grantee is ineffective until the grantee's name is added or determined. A deed to a nonexistent grantee is void as to the nonexistent grantee.

Evidentiary Issues with Absolute Deeds

The grantor must prove the existence of such an agreement by clear and convincing evidence. Parol evidence is admissible to establish the existence of such an agreement because the deed was not intended to be a complete integration of the parties' agreement. In addition, the Statute of Frauds does not prevent the introduction of oral evidence to explain or interpret the written deed (i.e., to show that the deed was subject to an agreement that the property serve as security for an obligation).

Intent to Transfer Deed

The grantor must, at the time of transfer, intend to make a present transfer of a property interest to the grantee. Note that the interest itself may be a future interest, such as when a parent retains a life estate in a residence and transfers a remainder interest to an adult child. Typically, this intent is manifested by delivery of the deed. Delivery may be completed by physically handing or mailing the deed to the grantee or the grantee's agent. However, intent can be implied from the words and conduct of the grantor, such as when the grantor drafts and records a deed. Although it is often stated that a deed must be delivered in order for a real property interest to pass (i.e., a delivery requirement), the term "delivery" is used as shorthand for the existence of the necessary grantor intent. Physical transfer of a deed is not required and is not conclusive evidence of the grantor's intent.

General Warranty Deed

The grantor of a general warranty deed guarantees that he holds six covenants of title: (1) seisin, (2) right to convey, (3) against encumbrances, (4) quiet enjoyment, (5) warranty, and (6) further assurances.

Strict Product Liability - Employer

The immunity created by workers' compensation statutes protects the plaintiff's employer from most tort claims brought by the victim. It does not provide any immunity for other defendants. Frequently, the plaintiff-employee is injured while working with a defective machine tool or with a toxic substance, such as asbestos insulation. Workers' compensation does not bar a claim against the manufacturer of these products.

Implied Warranty of Fitness for a Particular Purpose

The implied warranty of fitness warrants that a product is fit for a particular purpose, but only if the seller knows the particular purpose for which the product is being purchased and the buyer relies on the seller's skill or judgment in supplying the product.

Implied Warranty of Merchantability

The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. The seller must be a merchant with respect to the kind of goods at issue.

Intentional Tort Defense - Initial Aggressor

The initial aggressor is not entitled to claim self-defense unless the other party has responded to nondeadly force with deadly force.

Private Nuisance - Unreasonable Interference

The interference is unreasonable if the injury caused by the defendant outweighs the usefulness of his actions.

Private Nuisance - Defendant's Conduct

The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance.

Collateral Estoppel - actually litigated

The issue must have been actually litigated in the prior action in order for issue preclusion to apply. Stoll v. Gottlieb, 305 U.S. 165 (1938) (Issue preclusion applies to findings of jurisdiction that are fully litigated.)

Collateral estoppel - final valid judgment

The issue must have been determined by a valid and binding final judgment. Generally, this requires that the first determination of the issue was within the authority of the court that decided it, and that the determination was made in a final decision on the merits.

Collateral Estoppel - same issue

The issue sought to be precluded must be the same as that involved in the prior action. The facts relevant to the particular issue and the applicable law must be identical in order for issue preclusion to apply. Comm'r of Internal Revenue v. Sunnen, 333 U.S. 591 (1948).

Four Unities of Joint Tenancy

The joint tenancy must be created with each joint tenant having an equal right to possess or use the property (unity of possession), with each interest equal to the others (unity of interest), at the same time (unity of time), and in the same instrument (unity of title). [Mnemonic−"PITT"]. Unlike a joint tenancy, a tenancy in common requires only the unity of possession.

Finality of judgment in res judicata

The judgment must also be final, meaning that there is nothing further for the court to do but order entry of judgment.

Validity of final judgment in res judicata

The judgment must be valid, meaning that the court had both personal and subject matter jurisdiction, and the defendant had proper notice and an opportunity to be heard.

Negligence - Non-Delegable Duty to Invitees

The land possessor's duty to invitees is a non-delegable duty. For example, even if a store owner hires an independent contractor to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator. This same principle of non-delegable duty applies under the modern approach (discussed below), under which the land possessor owes most land visitors a duty of reasonable care.

Land Sales Contracts and the Statute of Frauds

The land sales contract must: (1) Be in writing; (2) Be signed by the party to be charged; and (3) Contain all of the essential terms (i.e., parties, property description, terms of price and payment).

Eviction of Holdover Tenant

The landlord may evict a hold over tenant by filing a lawsuit if the tenant remains after serving a written notice to vacate or quit the premises. Most states no longer allow the landlord to use self-help; of those that do, some prohibit the use of force, while others permit the use of reasonable force to regain possession of the premises.

New Periodic Tenancy With Holdover Tenant

The landlord may instead bind the holdover tenant to a new periodic tenancy. This may be accomplished by specifically informing the tenant or by accepting rent from the holdover tenant. The length of this new periodic tenancy is determined by the period on which rent was calculated under the prior lease. For a commercial lease, the maximum period of new tenancy is one year. For a residential lease, the maximum period is generally a month.

Negligence - Landlords

The landlord remains liable for injuries to the tenant and others occurring: (1) In common areas such as parking lots, stairwells, lobbies, and hallways; (2) As a result of hidden dangers about which the landlord fails to warn the tenant; (3) On premises leased for public use; (4) As a result of a hazard caused by the landlord's negligent repair; or (5) Involving a hazard that the landlord has agreed to repair.

Law of Agency General Statement

The law of agency addresses the legal consequences of one person (the agent) acting on behalf of, and subject to the control of, another person (the principal).

Public Nuisance vs. Private Nuisance

The law of public nuisance is extremely vague and varies greatly from one jurisdiction to another. However, the modern trend is to transpose much of the law governing private nuisance onto the law of public nuisance, including the required nature of a defendant's conduct and available defenses.

Modification of Child Custody - Relocation

The law regarding whether a parent can modify a custody order and relocate with a minor child is diverse. Some jurisdictions consider the relevant facts, but they place the predominant weight on the best interests of the child. See, e.g., Pollock v. Pollock, 889 P.2d 633, 635 (Ariz. Ct. App. 1995). Other jurisdictions apply a presumptive right to relocate with the child, provided that the rights and welfare of the child are not prejudiced. More often, the custodial parent seeking relocation bears the burden of demonstrating that the relocation is for a legitimate and reasonable purpose, as opposed to restricting the noncustodial parent's visitation. See, e.g., Conn. Gen. Stat. 46b-56d. Some states, however, will place the burden of proof on the parent objecting to the relocation, typically the noncustodial parent, to demonstrate that the move will not serve the child's best interests or that the move would also cause harm to the child. See, e.g., Pennington v. Marcum, 266 S.W.3d 759, 768-69 (Ky. 2008). Provided that a legitimate purpose for the move can be ascertained, the trend of the courts is to permit the custodial parent and child to relocate. An application to relocate, however, should be made in advance of the relocation, and it must be based on anticipated present facts, not speculative ones. See, e.g., Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). Applications made after the relocation has taken place are often highly criticized by the court. Among the factors considered by the various jurisdictions are the following: (1) The nature, quality, and involvement with the child of the parent who is not seeking relocation; (2) The age and needs of the child and the impact that the proposed relocation will have on that development, including any special needs of the child; (3) The ability to preserve the relationship with the nonrelocating parent and the child through visitation arrangements; (4) The child's preference, if the child is of sufficient maturity; (5) Whether the parent seeking relocation has any history of promoting or preventing parenting time with the nonrelocating parent; (6) Whether the relocation will enhance the quality of life of the child and the parent seeking relocation; (7) The reasons each parent has in requesting or opposing the relocation; and (8) Any other factors that affect the best interests of the child. It is important to note that the applicable standards may be even more restrictive when the parents share joint custody of the minor child. See, e.g., O'Connor v. O'Connor, 793 A.2d 810 (N.J. Super. Ct. App. Div. 2002); Tenn. Code Ann. § 36-6-108 (2005). In those jurisdictions, the standard is often more protective of the parent who is not seeking the relocation. Mediation can often be useful in assisting with resolving child-custody issues.

Tenant Destruction of the Premises

The lease is terminated and the tenant is excused from paying rent if the premises are destroyed, such as by flood, as long as the tenant is not at fault for the destruction. At common law, the tenant's duty to pay rent was not excused simply because the leasehold premises were destroyed.

Minors, incompetents, decedents, and trusts in diversity jurisdiction

The legal representative of a minor, an incompetent, or an estate of a decedent will be deemed a citizen of the same state as that minor, incompetent, or decedent. § 1332(c)(2). As to trusts, the old rule was that they were deemed to be a citizen of the same state as the trustee. See Navarro Savings Ass'n v. Lee, 446 U.S. 458 (1980). However, this rule has been placed in doubt by Carden v. Arkoma Assocs., 494 U.S. 185 (1990), which held that the citizenship of unincorporated associations is determined by the citizenship of all of its members. At least one lower federal court has recently applied the Carden holding to trusts, holding that Carden requires that diversity would be destroyed if, in a suit against a trust, any beneficiary of the trust is a citizen of the same state as a plaintiff. See Bergeron ex rel. Ridgewood Elec. Power Trust V v. Ridgewood Elec. Power Trust V, 2007 U.S. Dist. LEXIS 48555 (D. Mass., Jul. 5, 2007). An unemancipated minor is generally deemed a citizen of the state in which his parents are domiciled. If a minor's parents are not citizens of the same state, then the child will generally be deemed a citizen of the state of the parent who has custody.

Spousal Maintenance - length of marriage

The length of the marriage is considered in determining spousal support.

False Imprisonment - Time

The length of time of the confinement or restraint is immaterial, except as to the determination of the extent of damages.

Domestic Violence - Relief

The major relief granted under most of the statutes is an injunctive order prohibiting the defendant's further abuse of and contact with the victim. It can, and typically does, include exclusive possession of the residence for the period of time, child-custody and parenting time, and support. In most jurisdictions, the application for a protective order is a two-step process. The applicant must obtain an ex parte order with limited injunctive relief, followed by a hearing, after notice has been given to the defendant, for a permanent order. The duration of the order depends on the jurisdictional statute and ranges for a period of one year to an indefinite length of time. The penalties for violating a protective order are criminal in nature and range from a fine to imprisonment.

Marital Property - Licenses or Degrees

The majority of jurisdictions do not treat a professional license or degree as a distributable property interest. Simmons v. Simmons, 708 A.2d 949 (Conn. 1998); but cf. Elkus v. Elkus, 572 N.Y.S.2d 901 (1 Dep't 1991) (a professional degree is an asset subject to equitable distribution). Most courts look at advanced degrees or licenses as an acquisition of knowledge as opposed to a property interest. A court may, however, view an advanced degree or license as increased earning capacity, which may have an effect on the determination of alimony. A court may also use its equity power to award a spouse reimbursement for his actual contribution toward the other spouse's educational and related living expenses. This is often referred to as the "cost-value" approach.

Negligence - Cardozo Foreseeability

The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable plaintiffs") as a result of the defendant's negligent conduct. According to Judge Cardozo's majority opinion in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

NIED - Physical Symptoms

The majority rule is that the emotional distress must be manifested by physical symptoms (e.g., nightmares, shock, ulcers). The severity of symptoms required varies by jurisdiction. A few states as well as the Restatement allow recovery for serious emotional disturbance without a physical manifestation of harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §4, comment d. Compare to intentional infliction of emotional distress, under which the plaintiff must prove more than negligence (intentional or reckless extreme or outrageous conduct) but need not prove any physical injury.

Landlord Duty to Mitigate Abandonment

The majority rule today requires a landlord to mitigate damages by making an effort to re-rent the premises. The landlord may re-rent the premises on the tenant's behalf and hold the tenant liable for any deficiency. The minority rule does not require the landlord to mitigate damages.

Damages for Contract to Lend Money

The measure of damages for breach of a contract to lend money is the additional cost of obtaining a loan from another lender (e.g., the difference in cost over time between the interest rates of the original loan and the subsequent loan).

Negligence - Andrews Foreseeability

The minority view (and the Restatement approach), articulated in Judge Andrews's minority opinion in Palsgraf, states that if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause. See § IV.E.3. Proximate Cause, infra. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 cmt. n (2010).

Intentional Misrepresentation - False Representation

The misrepresentation must be of a material fact, not an opinion. Usually, the defendant actively misrepresents the facts, such as through deceptive or misleading statements or pictures. Sometimes, the misrepresentation occurs through the active concealment of a material fact, such as when the seller of a house places paneling over the basement walls to conceal that the foundation is in terrible condition. There generally is no duty to disclose a material fact or opinion to the other party. However, there may be an affirmative duty to disclose a fact when the plaintiff is: i) In a fiduciary relationship with the defendant; ii) Likely to be misled by statements previously made by the defendant ("partial disclosure"); or iii) (In a minority of jurisdictions) Under a mistaken belief about a basic fact of the transaction that the defendant is aware of and should disclose.

Intentional Misrepresentation - Causation

The misrepresentation must have caused the plaintiff to act or to refrain from acting. That is, the plaintiff must have actually relied on the misrepresentation.

Strict Product Liability - Product Misuse or Alteration

The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates liability. On the other hand, foreseeable misuse, alteration, or modification usually does not preclude recovery. A majority of comparative-fault jurisdictions treat product misuse as a form of fault that reduces, but does not eliminate, the plaintiff's recovery. A significant minority of comparative-fault jurisdictions, and most contributory-negligence jurisdictions, hold that product misuse totally bars recovery.

Negligence - Cost-Benefit Analysis of Breach of Duty

The modern trend and the Third Restatement approach set out the primary factors to consider in determining whether the defendant has acted in accordance with the standard of care as follows: (1) The foreseeable likelihood that the defendant's conduct would cause harm; (2) The foreseeable severity of any resulting harm; and (3) The defendant's burden (costs or other disadvantages) in avoiding the harm. The Third Restatement defines negligence using these terms rather than the reasonably prudent person standard.

Intentional Tort Defense - Express Consent

The plaintiff expressly consents if she, by words or actions, manifests the willingness to submit to the defendant's conduct. The defendant's conduct may not exceed the scope of the consent.

Security Agreement Authenticated Record

The most common means by which to evidence the debtor's assent to the security agreement is by an authenticated record. To satisfy this requirement, the security agreement must: i) Be in a record; ii) Contain a description of the collateral; and iii) Be authenticated by the debtor.

Burden of Proof for motion for summary judgment

The movant has the burden of persuasion on a motion for summary judgment. Once the movant makes a prima facie showing that summary judgment is appropriate, the burden shifts to the opposing party to set forth specific evidence showing the existence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

Paternity and Child Support

The obligation of child support falls on the child's parents. Questions may arise, however, as to the identity of the child's father. Once his identity is established, the child's father has rights to custody and visitation, but he is also under a duty to support the child. Paternity actions are confidential and not available to the public.

Master of the Offer

The offeror is master of the offer and can dictate the manner and means by which an offer may be accepted. For example, the offeror can require the offeree to accept in writing or to accept by means of a phone call. Unless the offeror specifically requires the offeree to accept in a particular manner or by using a particular means, the offeree can accept in any reasonable manner and by any reasonable means. UCC § 2-206(1)(a). A means of acceptance is reasonable if it was used by the offeror, used customarily in the industry, or used between the parties in prior transactions. Restatement (Second) of Contracts § 65. Even if the acceptance is by unauthorized means, it may be effective if the offeror receives the acceptance while the offer is still open. Restatement (Second) of Contracts § 67.

Collateral Attack of Jurisdiction of ex parte divorce

The only way for the nonresident defendant to attack the issuance of an ex parte divorce is to demonstrate that the plaintiff either was not domiciled in the divorcing state at the time that the judgment was granted or left the state's domicile immediately after the entry of the divorce. If the court had both personal and subject-matter jurisdiction over the parties, and the attacking party litigated or had the opportunity to litigate, then that person will be precluded from collaterally attacking the judgment in any jurisdiction. Sherrer v. Sherrer, 334 U.S. 343 (1948). This is often seen in cases in which the parties colluded to obtain an out-of-state divorce. Although persons other than the party may collaterally attack a divorce if standing exists (i.e., a child), they will be precluded from attacking it if the third person is in privity with any party who would have been estopped from attacking the judgment themselves.

Sufficiently identical causes of action and res judicata

The original and later-filed causes of action must be sufficiently identical to be barred under claim preclusion. Federal courts apply a transactional approach under which they bar a subsequent claim with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. If a plaintiff sues on only a portion of a claim arising from a transaction, the unaddressed portions of his claim merge with the judgment if the plaintiff wins, and are barred if the plaintiff loses. Factors that are considered in determining what constitutes a transaction or series of transactions include: i) Whether the facts are related in time, space, origin, or motivation; ii) Whether the facts form a convenient trial unit; and iii) Whether treating the facts as a unit conforms to the parties' expectations.

Product Liability - Damages

The plaintiff is entitled to recover damages resulting from any personal injury or property damage. A claim for purely economic loss (including a claim for harm to the product itself) is generally not allowed under either a negligence theory or a strict-liability theory, but it must be brought as a breach-of-warranty action.

Adding New Debtor to Authenticated Security Agreement

The original authenticated security agreement between a debtor and secured party can serve as the authenticated security agreement of a person who becomes bound as a debtor to the security agreement entered into by the original debtor (i.e., a new debtor). A person becomes bound as debtor by a security agreement entered into by another person if, by operation of law other than Article 9 or by contract: i) The security agreement becomes effective to create a security interest in the person's property; or ii) The person becomes generally obligated for the obligations of the other person, including the obligation secured under the security agreement, and acquires or succeeds to all or substantially all of the assets of the other person. The original authenticated security agreement can serve as the new debtor's authenticated security agreement with respect to existing and after-acquired property described in the original agreement. The new debtor need not execute another agreement. UCC § 9-203(d, e). As a consequence, the secured party can file a new or amended financing statement without the need to secure the new debtor's authorization

Mortagee's release or impairment of property subject to mortgage

The original mortgagor-borrower is also relieved of personal liability if the mortgagee-lender releases or impairs the property subject to the mortgage. Some states provide that a release completely discharges the mortgagor's personal liability. Other states and the Restatement provide that the mortgagor's personal liability is discharged only to the extent of the value of the property released.

Automobile Owners - Negligent entrustment

The owner of a vehicle (or any other object that carries the potential for harm, such as a gun or lawn mower) may be liable for the negligent acts of a driver or user to whom the car or other property was entrusted if the owner knew or should have known of the user's negligent propensities.

Domestic Animal - Trespassing

The owner of any animal, wild or domestic (other than household pets), is strictly liable for any reasonably foreseeable damage caused by his animal while trespassing on the land of another. The exception for household pets (the Third Restatement specifically mentions dogs and cats) does not apply if the owner knows or has reason to know that the dog or cat is intruding on another's property in a way that has a tendency to cause substantial harm. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 21 (2010). The general negligence standard applies if an animal strays onto a public road and contributes to an accident there.

Duty to Maintain Easement

The owner of the easement has the right as well as the duty to maintain the easement for its purpose unless the parties otherwise agree, and may be liable for damages caused to the servient estate for negligent or intentional violations of this duty, but is not strictly liable for any damage suffered by the servient estate from the use of the easement. If the easement is shared, the owner who maintains or repairs the easement may seek contribution from the other owners of the easement after adequate notice and an opportunity to participate in repair decisions. The owner of the servient estate also has an obligation to contribute to repair or maintenance of an easement if the servient estate owner uses the easement. Restatement (Third) of Property: Servitudes § 4.13 (2000).

Change in Easements

The owner of the servient estate may thwart a change in the scope of an express easement that conflicts with the terms of the easement. Otherwise, a change in the scope of an existing easement is tested under a reasonableness standard in light of the purpose of the easement.

Parol Evidence Rule Exception - Subsequent Agreement

The parol evidence rule does not apply to evidence of agreements between the parties subsequent to execution of the writing.

Parol Evidence Rule Exception - Raising A Defense to the Formation of a Contract

The parol evidence rule does not apply when a party is raising a defense to the formation of a contract, such as mistake, misunderstanding, or misrepresentation. Parties may always introduce evidence that would show that no valid contract exists or that the contract is voidable.

Failure to Name Indispensable Parties and Diversity Jurisdiction

The parties may not manufacture diversity jurisdiction by failing to join a nondiverse indispensable party.

Premarital Agreements - Voluntary

The parties must enter into the contract voluntarily (i.e., free of fraud, duress, or misrepresentation). Courts consider factors such as time-pressure, the parties' previous business experience, and the opportunity to be represented by independent counsel. A party's insistence on the agreement as a condition to marriage is not considered duress.

Intent requirement for covenant running with the land

The parties must intend for the rights and duties to run with the land. Look for either explicit language, such as "and his heirs and assigns," or implication from the totality of the document and circumstances.

Trespass to Chattel - Remedy

The plaintiff may be entitled to compensation for the diminution in value or the cost of repair.

Supplementing the disclosure of expert testimony

The parties must supplement these disclosures when required under Rule 26(e). (See § VII.B.7. Supplementation, infra.) For an expert whose report must be disclosed, the party's duty to supplement extends both to information included in the report and to information given during the expert's deposition. Any additions or changes to this information must be disclosed by the time that the party's pretrial disclosures under Rule 26(a)(3) are due.

Conveyance of real property by private trusts

The parties to a trust include the settlor (the person who creates the trust), the trustee (the person who holds legal title to the property), and the beneficiary (the party who holds equitable title). A valid trust must have: (1) Intent, the settlor must intend to make a gift in trust; (2) Valid purpose, any purpose not illegal or against public policy; (3) Res, the property that is subject to the trust; and (4) Beneficiaries, those identifiable persons for whose benefit the trust is created and who hold equitable title to the property. An inter vivos trust is created when the settlor conveys his property (res) to the trustee while the settlor is alive. Alternatively, the settlor may simply declare that he is holding certain property in trust for certain beneficiaries, without there being an actual conveyance of the property. Remember that any conveyance of real property must satisfy the Statute of Frauds. Another form of conveyance occurs when the settlor creates a trust by language in his will and transfers the property by devise in his will. This type of trust is called a "testamentary trust" and comes into being only on the death of the settlor. Finally, the settlor may create an inter vivos trust but not fund the trust until his death, by devise in his will. In this case, property "pours over" into the trust.

Spousal maintenance - age and health

The parties' age and health, both physical and mental, is considered in determining support.

Responses and Objections to Rule 34

The party to whom the request is directed must respond in writing within 30days after being served or within 30 days after the parties' first rule 26(f) conference, if the request was served prior to that conference unless a shorter or longer time is stipulated to by the parties or ordered by the court. If a party fails to respond to a document request or to allow inspection, or objects to a request, then the requesting party may move to compel under Rule 37(a). Rule 34(b)(2)(A). The responding party may state that it will produce copies of documents or electronically stored information instead of permitting inspection. The production must be completed no later than the time for inspection specified in the request or another reasonable time specified in the response. Rule 34(b)(2)(B). With regard to electronically stored information, if a request does not specify a form for its production, then a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A party need not produce the same electronically stored information in more than one form. Rule 34(b)(2)(E).

Burden of Production

The party with the burden of production (or burden of going forward) must produce legally sufficient evidence as to each element of a claim or defense, so that a reasonable trier of fact could infer that the alleged fact has been proved. In meeting this burden, a plaintiff or prosecutor has made a prima facie case. Failure to meet this burden can result in a directed verdict against the party bearing the burden. The determination of whether it has been met rests with the court. The burden of production may shift during trial.

Spousal Maintenance - tax consequences

The payor of spousal-support payments may deduct those payments from income, while the recipient must include the support payments as income, unless otherwise stated in the divorce decree or separation agreement.

Death of Buyer of Real Property

The person entitled to the buyer-decedent's real property, such as the devisee of the buyer-decedent's real property pursuant to the buyer/decedent's will, can compel the transfer of the property to herself.

Respondeat Superior - non-delegable duties

The person who hires an independent contractor remains vicariously liable for certain conduct, including: (1) Inherently dangerous activities; (2) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway); (3) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and (4) In a minority of jurisdictions, the duty to comply with state safety statutes.

Negligent Misrepresentation - Damages

The plaintiff can recover reliance (out-of-pocket) damages, as well as any other consequential pecuniary damages, if negligent misrepresentation is proven with sufficient certainty.

Negligence - Punitive Damages

The plaintiff may be entitled to punitive damages if he can establish by clear and convincing evidence that the defendant acted willfully and wantonly, recklessly, or with malice. Torts that inherently involve a malicious state of mind or outrageous conduct (such as intentional infliction of emotional distress) may often result in punitive damages for the plaintiff. Note that in many states that availability of punitive damages as a remedy is determined by statute.

IIED - Causation

The plaintiff may establish causation by a showing that the defendant's actions were a substantial factor in creating the plaintiff's distress.

Conversion - Damages

The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

False Imprisonment - Confined Within Boundaries

The plaintiff must be confined within a bounded area in which the plaintiff's freedom of movement in all directions is limited. The bounded area may be large and need not be stationary. An area is not bounded if there is a reasonable means of safe escape.

Theft of Trade Secrets

The plaintiff must own a valid trade secret (i.e., information that provides a business advantage) that is not generally known. The owner of the secret must take reasonable precautions to protect the secret, and the defendant must have taken the secret by improper means.

Intentional Misrepresentation - Damages

The plaintiff must prove actual damages to recover; nominal damages are not awarded. Consequential damages may also be awarded. In a majority of jurisdictions, the measure of recovery in misrepresentation cases is the "benefit of the bargain" rule (the difference between the actual value received in the transaction and the value that would have been received if the misrepresentation were true). The Second Restatement and a handful of states allow the plaintiff to choose between the benefit of the bargain and the out-of-pocket loss measures of damages. A small minority of states limit the plaintiff's recovery to his out-of-pocket losses (similar to the typical tort law measure of recovery).

Negligence - Actual Damages generally

The plaintiff must prove actual harm, i.e., personal injury or property damage, in order to complete the requirements of liability for negligence. Unlike in actions for intentional torts, nominal damages are not recoverable in negligence actions.

Product Liability - Causation

The plaintiff must prove factual and proximate causation. When a seller sells a product with a known defect and without giving adequate warnings about the defect, the failure to warn may be a superseding cause, breaking the chain of causation between the manufacturer and the injury.

IIED - Damages

The plaintiff must prove severe emotional distress beyond what a reasonable person could endure. In many cases, the very extreme and outrageous character of the defendant's conduct itself provides evidence that the plaintiff experienced severe mental distress. In other words, the more extreme the defendant's conduct, the less evidence is required of the severity of the plaintiff's emotional distress. If the plaintiff is hypersensitive, however, and experiences severe emotional distress unreasonably, then there is no liability unless the defendant knew of the plaintiff's heightened sensitivity. Most courts do not require the plaintiff to prove physical injury except in the case of bystander recovery when the plaintiff is not a member of the immediate family of the person toward whom the defendant's extreme and outrageous conduct is personally directed.

Negligence - Causation generally

The plaintiff must prove that the defendant's actions were both the actual cause (also known as the "factual cause" or "cause in fact") and the proximate cause (also known as the "legal cause" or, under the Restatement, the "scope of liability") of the plaintiff's injury.

Negligence - Mitigation of Damages

The plaintiff must take reasonable steps to mitigate damages. Although sometimes phrased as a "duty to mitigate," this "duty" is not an obligation that the plaintiff owes to the defendant but instead is a limitation on the plaintiff's recovery due to the failure to avoid harm that could have been avoided by the use of reasonable effort after the tort was committed. For example, if the victim fails to use reasonable care to treat a wound, resulting in infection and the loss of a limb, that failure to mitigate her damages likely will reduce or even eliminate her recovery, depending on the jurisdiction's approach to contributory negligence.

Intentional Tort Defense - Implied Consent

The plaintiff's consent is implied when the plaintiff is silent (or otherwise nonresponsive) in a situation in which a reasonable person would object to the defendant's actions.

Intentional Misrepresentation - Justifiable Reliance

The plaintiff's reliance must have been justifiable. Reliance is not justifiable if the facts are obviously false or if the defendant is stating a lay opinion. However, the plaintiff is under no duty to investigate the truth or falsity of the statement.

Warranties and Assumption of the Risk

The plaintiff's unreasonable, voluntary encountering of a known product risk affects recovery in the same way as it would in a strict-products-liability claim.

Words of transfer of a deed

The portion of a deed that contains the words that transfer an interest from the grantor to the grantee is called a "granting clause" (e.g., "do grant and convey"). Any language evidencing a present intent to transfer will suffice.

Wild Animals - Dangerous Propensity

The possessor of a wild animal is strictly liable for harm done by that animal, in spite of any precautions the possessor has taken to confine the animal or prevent the harm, if the harm arises from a dangerous propensity that is characteristic of such a wild animal or of which the owner has reason to know.

Firm Offer Statute of Frauds

The primary purpose of the signed writing requirement is to ensure that the merchant deliberately makes a current firm offer binding. Therefore, a full handwritten signature is not always required, such as when merely initialing the relevant clause is appropriate under the circumstances, or when the offeror handwrites on her letterhead that she "confirms" that a firm offer was already made. U.C.C. § 2-205, cmt. 2.

Agent's Right To Not To Be Interfered With

The principal also has a duty to cooperate with the agent and assist the agent in performing the tasks associated with the objectives of the agency.

Principal's Right to Accounting

The principal has the right to receive an accounting from the agent of all property and funds received or paid on behalf of the principal. The agent is obligated to maintain the principal's funds separate from his personal funds.

Principal's Right to Notice

The principal is entitled to notice from the agent of all issues relevant to the subject matter of the agency relationship. Generally, the law of agency assumes that the principal is aware of all relevant knowledge of and information provided to the agent. A core tenet of agency law is that knowledge of or notice to the agent is notice to the principal.

Agent's Right to Safe Environment

The principal must provide a safe working environment, including tools, equipment, and conditions for an agent or employee.

Binding Agency Relationship

The principal will generally be bound by any contract, created on the principal's behalf, by an agent with the power to bind the principal, whether the power to bind is: (1) Expressed orally or in a writing; (2) Implied by a principal's conduct; or (3) Misinterpreted by a third party.

Deaths in Agency Relationships

The principal's death does not terminate an agent's authority until the agent has notice of the principal's death. The death of the agent automatically terminates the agent's actual authority. Authority does not pass to the agent's estate or heirs.

Proceeds from a PMSI in goods

The priority of a PMSI in goods generally extends to the identifiable proceeds of the original collateral, but only as to proceeds in which the security interest is perfected when the debtor receives possession of the collateral or within 20 days thereafter. UCC § 9-324(a), incl. cmt. 8.

Proceeds from a PMSI in inventory

The priority of a PMSI in inventory extends to identifiable cash proceeds received on or before the delivery of the inventory to a buyer if: i) The PMSI is perfected when the debtor receives possession of the inventory; and ii) The purchase-money secured party sends an authenticated notification to the holder of the conflicting security interest, revealing the secured party's intent to acquire a PMSI in the inventory of the debtor and describing the inventory. The priority of a PMSI in inventory generally does not extend to proceeds consisting of accounts or chattel paper. The priority can, however, extend to proceeds consisting of either chattel paper (as well as chattel paper proceeds) or instruments if the purchase-money secured party otherwise satisfies the requirements for securing a priority (e.g., takes possession of the chattel paper or instruments). UCC §§ 9-324(b); 9-330.

Trespass to Land - Necessity as a Defense

The privilege of necessity is available to a person who enters onto the land of another (or interferes with another's personal property) in order to prevent injury that is substantially more serious than the invasion or interference itself. The privilege of necessity applies only to intentional torts to property, including trespass to land, trespass to chattels, and conversion.

Original Tenant's Rights and Liabilities with Assignments and Sublets

The privity of estate held by the original tenant terminates upon a successful assignment by the tenant to the assignee (but does not terminate upon a sublease). Because the original tenant remains in privity of contract with the landlord (both are parties to the lease agreement), however, the original tenant remains liable for all the covenants in the lease—even after a successful assignment. Absent an agreement by the landlord to release the original tenant from liability (i.e., a novation), the original tenant remains liable to the landlord for the entire duration of the lease.

Promisor's Defense Against Third Party Beneficiary

The promisor can raise any defense against the third-party beneficiary that the promisor had against the original promisee. The beneficiary is liable for counterclaims arising from the contract that the promisor can establish against the promisee, but the beneficiary's liability cannot exceed the amount that the promisor owes under the contract. The promisor generally may not assert any defenses that the promisee has against the intended beneficiary. However, if the promisor's promise is one to assume the promisee's obligation, then the promisor can raise the promisee's defense.

Municipal Government Tort Liability - Public-Duty Rule

The public-duty rule provides that there is no liability to any one citizen for the municipality's failure to fulfill a duty that is owed to the public at large, unless that citizen has a special relationship with the municipality that creates a special duty. A special relationship can be shown by: (1) Promises or actions on the part of the municipality demonstrating an affirmative duty to act on behalf of the injured party; (2) Knowledge by the municipality's agents that failure to act could lead to harm; (3) Direct contact between the municipality's agents and the injured party; and (4) The injured party's justifiable reliance on the municipality's affirmative duty.

Purchaser of real property at foreclosure sale

The purchaser of property at a foreclosure sale takes the property free and clear of any junior mortgage and subject to any senior mortgage. In addition, the purchaser may be subject to the mortgagor's statutory right of redemption.

Infancy Doctrine and necessities

The purpose behind the infancy doctrine is to protect minors, a class of people who are generally immature and require protection from poor judgment and advantageous adults. An exception to the infancy rule exists when the contract is based on necessities. When necessities are furnished to the infant, the infant must pay for them, but the recovery by the person furnishing the necessities is limited to the reasonable value of the services or goods (not the agreed-upon price). Recovery is under a theory of quasi-contract.

Property-Settlement Agreement

The purpose of a property-settlement agreement is to settle the economic issues of the marital estate. It is entered into by the parties before a divorce decree is issued. As with a separation agreement, a court generally will enforce spousal maintenance and property division provisions so long as the agreement is not unconscionable or based on fraud.

Spousal Maintenance - reimbursement

The purpose of reimbursement alimony is to compensate a spouse for financial sacrifices made during the marriage that resulted in a reduced standard of living to secure an enhanced standard of living in the future. Often, this type of alimony is awarded only in cases in which one spouse did not work in order to secure an advanced degree or professional license. It is rarely used, and unlike the other forms of alimony, it is based on past contributions rather than present or future needs. Instead of reimbursement alimony, some jurisdictions treat this type of payment as property division.

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

The purpose of the UCCJEA is to prevent jurisdictional disputes with courts in other states on matters of child custody and visitation. Almost all states have enacted the UCCJEA. Adjudication under the UCCJEA requires that the court possess subject-matter jurisdiction.

Common-Interest Ownership Community Governing Documents

The recorded document (or documents) that imposes the covenants and easements creating the common-interest ownership community is typically referred to as the "declaration." The declaration, together with other documents, such as the articles of incorporation, bylaws, and rules and regulations adopted by the association, serves to govern the operation of the association and determine the rights and obligations of the members of the common-interest ownership community. Collectively, these documents are known as the "governing documents." Because the declaration is ordinarily recorded before common-interest community members purchase their properties, greater weight is often given to the terms of the declaration than the terms of other governing documents that are not recorded. Restatement (Third) of Property: Servitudes § 6.2(5, 6), cmts. e, f.

Landlord-Tenant Estates

The relationship between a landlord and a tenant can create four kinds of estates. This relationship is generally governed by a contract, called the "lease," that contains the covenants of the parties. The promises are generally independent of each other. In other words, each party must perform his promises regardless of whether or not the other party performs his promise. The four types are (1) Tenancy for years; (2) Periodic tenancy; (3) Tenancy at will; and (4) Tenancy at sufferance.

PMSI and Consignment

The security interest of a consignor in the consigned goods is a PMSI in inventory. UCC § 9-103(d).

Marital Property - Goodwill

The reputation and clientele of a professional practice (such as that of a doctor or lawyer) is considered marital property in some jurisdictions.

Public Disclosure - Publicity

The requirement of publicity in the public disclosure tort requires far broader dissemination of the information than is required under the "publication" requirement of defamation. The information must be communicated at large or to so many people that it is substantially certain to become one of public knowledge.

Buyer in the ordinary course - knowledge

The requirement that a BOCB take without knowledge means actual knowledge that the sale is in violation of another party's rights. Mere notice or reason to know is insufficient. UCC §§ 1-201(25), 9-320(a), incl. cmt. 3.

Landowner Right to Subjacent Support

The right to subjacent support (i.e., support from beneath the surface of the land) arises when the owner of land grants the right to mine on his land to a third party. The owner of the mineral rights is strictly liable for any failure to support the land and any buildings on the land at the time the rights were conveyed. The owner is liable only for negligence for damage to any improvements built after the conveyance of the rights.

Trial Order

The right to trial by jury is evaluated for each claim. If an action involves both legal and equitable claims, then the jury normally determines the legal claims first, and the court then determines the equitable claims, but the court is bound by the jury's findings on the legal claims. Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959).

Life Estate and Waste generally

The rights of a holder of a life estate may be limited by the doctrine of waste. Under this doctrine, a life tenant must deliver the property in essentially the same condition that it was in when she took possession. The holder of a future interest in the property (e.g., remainder, executory interest, reversion) may enter the land to inspect for waste, and she may seek damages and an injunction to prevent waste.

Vesting of Intended Third-Party Beneficiary's Rights

The rights of an intended beneficiary vest when the beneficiary: (1)Materially changes position in justifiable reliance on the rights created; (2) Manifests assent to the contract at one party's request; or (3) Files a lawsuit to enforce the contract. Once the beneficiary's rights have vested, the original parties to the contract are both bound to perform the contract. Any efforts by the promisor or the promisee to rescind or modify the contract after vesting are void, unless the third party agrees to the rescission or modification.

Riparian Reasonable-Use Doctrine

The riparian doctrine, favored in the eastern region, states that water belongs to those who own the land bordering the watercourse (riparians). Most states apply the reasonable-use doctrine, allowing the owner to make any reasonable use of the water. One riparian is liable to another for unreasonable interference with the other's use. Domestic ("natural") use trumps commercial ("artificial") use and can be unlimited. The water right cannot be sold or transferred separate and apart from the adjoining land.

Proceeds from a PMSI in livestock

The rule for proceeds from a PMSI in inventory generally applies to proceeds from livestock in which a PMSI is held. In addition, priority extends to identifiable products in their unmanufactured states (e.g., raw milk) in which a security interest is perfected.

Rule Against Perpetuities - Rule of convenience as a savior

The rule of convenience, which is a rule of interpretation, can operate to prevent the application of the Rule to a class transfer. Under this rule, membership in a class closes whenever any member of the class is entitled to immediate possession of a share of the class gift. Since the rule of convenience is a rule of interpretation, it does not apply when the grantor specifies that the class should remain open even though a member of the class is entitled to immediate possession of a share of the class gift. In addition, the application of the rule of convenience to a class transfer does not automatically forestall the application of the Rule.

In personam jurisdiction over foreign corporations

The rules of minimum contacts and substantial fairness apply to a foreign corporation. Absent "exceptional" circumstances, a plaintiff may sue a corporation in only three places: (i) the forum that has specific jurisdiction because the lawsuit stems from the defendant's contacts with that forum; (ii) the defendant's place of incorporation; or (iii) the defendant's principal place of business. Daimler AG v. Bauman, 571 U.S. ___, 134 S. Ct. 746(2014).

Purchasers of Chattel Paper and priority

The sale of chattel paper can create a security interest in the purchaser. The purchaser of chattel paper has priority over the interest of a secured party who claims the chattel paper merely as proceeds of inventory subject to a security interest provided that: i) The purchaser gives new value and takes possession or obtains control of the chattel paper; ii) The purchase is made in good faith and in the ordinary course of the purchaser's business; and iii) The chattel paper does not indicate that it has been assigned to an identified assignee other than the purchaser. UCC § 9-330(a). "New value" means that the purchaser must give new consideration, such as cash or credit, to the transferor. Therefore, parties who take the chattel paper as payment for a debt, or as proceeds of other collateral, are excluded. The purchaser of chattel paper has priority over all other types of security interests in chattel paper (i.e., a security interest in chattel paper that is claimed other than merely as proceeds of inventory subject to a security interest) provided the same conditions are met except that, in lieu of the lack of an indication of assignment (item iii above), the purchase must be made without knowledge that the purchase violates the rights of the secured party. UCC § 9-330.

Extent of Relief under joinder

The same relief need not be demanded among the joined plaintiffs or against the joined defendants. Rule 20(a)(3).

Buyer's Remedies Under UCC Upon Rejection

The same remedies are available to the buyer after rejection as if no tender was made by the seller, i.e., damages (including incidental and consequential damages, unless properly limited or excluded), cover, specific performance, or replevin.

Scope of Non-Express Easements

The scope of an easement by necessity is determined by the extent of the necessity. The scope of an easement by implication is determined by the existing quasi-easement. The scope of an easement by prescription is limited to the nature and extent of the adverse use.

Scope of Express Easements

The scope of an express easement is defined in the first instance by its terms. If the terms are ambiguous, then courts look to the intent of the parties, which may be indicated by the post-creation conduct of the parties and what is reasonable in light of the easement's purpose. If the location of the easement is not specified, then the owner of the servient estate may fix the location, provided it is reasonable.

Scope of cross-examination

The scope of cross-examination generally is limited to the subject matter of the direct examination and the credibility of the witness; however, the court may allow inquiry into additional matters. Fed. R. Evid. 611(b).

Specific and general in personam jurisdiction

The scope of the contacts necessary for the assertion of personal jurisdiction depends on the relationship that the cause of action has with the forum state. When a cause of action arises out of or closely relates to a defendant's contact with the forum state, jurisdiction may be warranted even if that contact is the defendant's only contact with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984). This type of jurisdiction is often referred to as "specific jurisdiction." When a cause of action does not arise out of or relate to the defendant's contacts with the forum, jurisdiction is warranted only when the defendant is "at home" in the forum state. A corporation is "at home" in the state of its incorporation and the state where its principal place of business, usually the executive offices or "nerve center," is located. Daimler Chrysler v. Bauman, 571 U.S. ___, 134 S. Ct. 746 (2014). This type of jurisdiction is known as "general jurisdiction."

Negligence - Indirect Causation

The second proximate cause issue is whether the injury resulted without any unforeseeable or extraordinary events that will serve to break the chain of the defendant's liability.

Duty to Relinquish Possession of Collateral

The secured party has a duty to relinquish possession of the collateral upon satisfaction of the secured obligation and the secured party is not committed to make advances or otherwise give value. Failure to do so constitutes conversion. UCC § 9-208.

Duty of Care from Possession or Control of Collateral

The secured party in possession of collateral has the duty of reasonable care with respect to custody and preservation of the collateral. The duty of care cannot be circumvented by an agreement between the debtor and the secured party, but the parties can determine the standards for judging such care; such standards must be reasonable. UCC §§ 9-207(a); 9-603(a).

Right to charge for reasonable expenses of collateral

The secured party in possession of collateral has the right to charge the debtor for reasonable expenses (e.g., storage, insurance, and taxes) incurred in the custody, preservation, use, or operation of the collateral; such expenses are also secured by the collateral. UCC § 9-207(b)(1).

Duty to Keep Collateral Identifiable

The secured party in possession of collateral must keep the collateral identifiable but may commingle fungible collateral. UCC § 9-207(b)(3).

Ignoring Default

The secured party may choose to ignore a default, but such action may constitute a waiver of the secured party's rights that would otherwise arise upon the default. UCC §§ 2-209(4), (5); 9-601, cmt. 3.

Right to use or operate collateral

The secured party may use or operate collateral for the purpose of preserving the collateral or its value. In addition, use or operation with respect to collateral that is not consumer goods may be in the manner and to the extent agreed to by the debtor. UCC § 9-207(b)(4).

Attachment - Value Given

The secured party, or a person acting on behalf of the secured party, must give value for the security interest. Value may be given: i) By providing consideration sufficient to support a simple contract; ii) By extending credit, either immediately or under a binding commitment to do so (the debtor need not draw upon the credit); iii) By, as a buyer, accepting delivery under a preexisting contract, thereby converting a contingent obligation into a fixed obligation; or iv) In satisfaction of, or as security for, part or all of a preexisting claim.

Waiver of Right of Redemption of Collateral

The security agreement may not contain a waiver of the right to redemption by the debtor or secondary obligor; any such attempted waiver is void. After default, a debtor or secondary obligor may waive the right of redemption in an authenticated agreement. UCC § 9-624(c).

Best Interest of the Child Standard

The standard for determining child custody is the best interests and welfare of the child. Generally, a parent is in the best position to care for a minor child, unless the parent is determined unfit. Many courts consider who the primary caretaker of the child was during the marriage and the separation, and prior to the divorce, as factors in determining who should have custody. See, e.g., Garska v. McCoy, 167 W.Va. 59 (W. Va. 1981); but cf. Gianvito v. Gianvito, 975 A.2d. 1164 (Pa. Super. 2009) (the primary-caretaker doctrine not only encompasses the day-to-day care of the child, but also includes the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past). The primary-caretaker factor is based on a child's need for a stable and continuous relationship with the primary parent.

Civil standards of evidence

The standard in most civil cases is a preponderance of the evidence. A fact is proven by a preponderance of the evidence if it is more likely to exist than not. A higher standard used in some civil cases (such as fraud) is clear and convincing evidence. Under this standard, the existence of a fact must be highly probable or reasonably certain.

Product Liability - Defenses

The standard negligence defenses of contributory/comparative negligence and assumption of the risk apply.

Negligence Per Se generally

The standard of care can sometimes be determined by statute. In most jurisdictions, the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach). A minority of jurisdictions hold that violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach).

Reasonably Prudent Person - Children

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applied to adult defendants in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult. However, a child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult. Courts regard children of a particularly young age as incapable of negligent conduct. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010).

Strict Product Liability - Statute of Limitations

The statute of limitations begins to run against the plaintiff with a personal injury whenever he discovers, or in the exercise of reasonable care should discover, his injury and its connection to the product. As a result, the statute of limitations may not preclude an action against a manufacturer or other seller until many decades after the manufacture and distribution of the product. For example, asbestos-related diseases may not manifest themselves until decades after the distribution of the asbestos insulation and the plaintiff's exposure to it.

Adverse Possession - disability of an owner

The statute of limitations will not run against a true owner who is afflicted with a disability (e.g. insanity, infancy, imprisonment) at the inception of the adverse possession.

Duties of Tenant generally

The tenant has two basic duties: to pay rent and to avoid waste. The duty to pay rent arises as a consequence of the agreement between the tenant and the landlord (i.e., a lease), which usually takes the form of a written contract. The duty to avoid waste is the same duty imposed on any holder of a current possessory property interest with respect to the holders of other interests in the same property. The duty to avoid waste may be modified by contractual or other legal obligations regarding repair of the premises.

Tenant Tort Liabilities

The tenant is the possessor of the leasehold who owes a duty of care to invitees, licensees, and foreseeable trespassers and may be liable for dangerous conditions or activities on the leased property. However, this duty is not violated by a failure to remove a natural accumulation of snow or ice, unless an act or failure to act caused the condition to worsen.

Contributory Negligence Per Se

The violation of a statute, a regulation, or an ordinance by a plaintiff may constitute contributory negligence per se. The same requirements apply.

Negligence - Possessors of Land

The term "possessors of land" as used here includes owners, tenants, those in adverse possession, and others in possession of land. The fact that a plaintiff is injured while on someone else's land does not affect the liability of a defendant other than the land possessor. Only land possessors are protected by the rules limiting liability to trespassers or licensees. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee. In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants on the land includes: (1) Conduct by the land possessor that creates risks; (2) Artificial conditions on the land; (3) Natural conditions on the land; and (4) Risks created when any of the affirmative duties are applicable.

Subject Matter Jurisdiction generally

The term "subject matter jurisdiction" refers to a court's competence to hear and determine cases of the general class and subject to which the proceedings in question belong. The five most common congressional grants of subject matter jurisdiction are (i) federal question jurisdiction, (ii) diversity jurisdiction, (iii)supplemental jurisdiction, (iv) removal jurisdiction, and (v) legislative jurisdiction.

Assault - Imminence

The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm.

Future Covenants

The three future covenants embodied within a general warranty deed are the covenants of quiet enjoyment, warranty and further assurances. Future covenants run with the land and can be enforced by remote grantees. The statute of limitations does not begin to run until the grantee's rights are encroached. The covenant of quiet enjoyment guarantees that the grantee's possession will not be interfered with by a third party's claim for title. The covenant of warranty guarantees that the grantor will defend against a third party's claim for title. The covenant for further assurances guarantees that the grantor will do whatever is necessary to perfect title should it turn out to be defective, though this covenant is not recognized in all states.

Present Covenants

The three present covenants embodied in the general warranty deed are the covenant of seisin, the covenant of the right to convey, and the covenant against encumbrances. The statute of limitations begins to run at the time of conveyance. The covenant of seisin warrants that the grantor owns the land as it is described in the deed. The covenant of the right to convey guarantees that the grantor has the right to transfer title. The covenant against encumbrances guarantees that the deed contains no undisclosed encumbrances.

Indemnification generally

The tortfeasor can seek complete reimbursement (indemnity) from another tortfeasor when: (1) There is a prior indemnification agreement between the parties (e.g., in the construction industry, a contractor may agree to indemnify a subcontractor for the latter's negligence that may occur in the future); (2) There is a significant difference between the blameworthiness of two defendants such that equity requires a shifting of the loss to the more blameworthy defendant; or (3) Under strict products liability, each supplier has a right of indemnification against all previous suppliers in a distribution chain.

Role of the judge in evidence determinations

The trial judge generally decides preliminary questions regarding the competency of evidence, including the admissibility of evidence, whether privilege exists, and whether a person is qualified to be a witness. The court is not bound by the Federal Rules in deciding these questions, except with respect to privileges, and it may consider otherwise inadmissible evidence. Fed. R. Evid. 104(a). With respect to preliminary questions, the party offering the evidence ordinarily bears the burden to persuade the trial judge by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171 (1987) (confession of co-conspirator as admission of party opponent); Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (expert opinion); Rule 702, Notes of Advisory Committee (2000). Hearings on preliminary matters must be conducted outside the presence of the jury when the hearing involves the admissibility of confessions, when a defendant in a criminal case is a witness and so requests, or when justice requires it. Fed. R. Evid. 104(c).

Negligence - Personal Injury Damages

The typical categories of damages recoverable in a personal injury action include: (1) Medical and rehabilitative expenses, both past and future; (2) Past and future pain and suffering (e.g., emotional distress); and (3) Lost income and any reduction in future earnings capacity.

Negligence - Spring-guns and other traps

The use of a spring-gun or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor. The land possessor cannot do indirectly what he would be forbidden to do directly (e.g., shoot the trespasser).

Remedies for Nuisance - Real Property

The usual remedy for nuisance is damages. Damages include any depreciation in the value of the property, and they may be apportioned among multiple defendants. All resulting harm is recoverable, including personal harm (e.g., diseases acquired from inhaling fumes) and harm to property. If money damages are inadequate or unavailable, courts may impose injunctive relief. In determining whether an injunction is appropriate, the courts will balance the potential hardships of the two parties. However, the court need not consider the relative hardships if the defendant's conduct was willful.

Nuisance Damages generally

The usual remedy for nuisance is damages. Damages include any depreciation in the value of the property. All resulting harm is recoverable, including damages for reduction in the value of real property, personal injury, and harm to personal property.

Single Plaintiff vs. Multiple Defendants for Amount in Controversy

The value of a single plaintiff's claims against each defendant may not be aggregated if the claims are separate and distinct. If the defendants are jointly liable to the plaintiff, then aggregation to meet the amount-in-controversy requirement is permissible.

Permissive Joinder of Claims and Venue

The venue requirements for federal court must be satisfied in order to join a claim under Rule 18.

Negligence Per Se - Incapacity

The violation of a statute may not be negligence if the violation is reasonable in light of the defendant's physical disability or incapacitation, or if the defendant is a child.

Types of Personal Jurisdiction

There are three general types of personal jurisdiction: (i) in personam jurisdiction, (ii) in rem jurisdiction, and (iii) quasi-in-rem jurisdiction.

Negligent Infliction of Emotional Distress

There are three types of cases in which a defendant may breach the duty to avoid negligently inflicting emotional distress upon a plaintiff. Whether a duty exists may depend upon whether the harm and the plaintiff are reasonably foreseeable. Some states deny recovery because one or the other is too speculative and thus not foreseeable.

Form of jury verdict

There are three types of permissible verdicts. Rule 49. The type used is subject to the discretion of the court. Flanigan v. Burlington Northern, Inc., 632 F.2d 880 (8th Cir. 1980), cert. den. 450 U.S. 921 (1981).

Exceptions to the Rule Against Perpetuities generally

There are two main exceptions to the "bad as to one, bad as to all" rule for class transfers. Both transfers of a specific dollar amount to each class member (e.g., "$50,000 to each grandchild who survives his parent") and transfers to a subclass that vests at a specific time (e.g., "to the children of B, and upon the death of each, to that child's issue") are tested separately. Any person who is entitled to the transferred interest is not prohibited from taking that interest simply because there are other members of the class who are prohibited from taking the interest.

Negligence - Contractual Duty

There is a duty to perform contractual obligations with due care.

Marital Presumption of Paternity

There is a marital presumption that a child born to a married woman is the child of that woman and her husband. Most states apply the presumption even when the wife is artificially inseminated, provided that the husband gave his consent to the procedure, and the procedure is performed by a physician. In some states, a wife is estopped from denying her husband's paternity of her child, but approximately half of the states permit rebuttal of the marital presumption if the husband is impotent, sterile, or lacked access to his wife. When rebuttal is permitted, some states permit a court to exclude evidence rebutting the presumption if rebuttal is contrary to the child's best interests.

Marriage presumption of validity

There is a presumption that the latest marriage is valid. This presumption is rebuttable by cogent evidence of the existence of a prior valid marriage at the time that the latest marriage was entered into.

Warranty of Habitability

There is an implied warranty of habitability in most residential leases, particularly when the dwelling is multi-family. The landlord must maintain the property such that it is reasonably suited for residential use. The landlord's failure to comply with applicable housing code requirements constitutes a breach of this warranty, particularly with regard to violations that substantially threaten the tenant's health and safety. This warranty generally cannot be waived by the tenant, either by express language in the lease or by taking possession of the property with knowledge of the conditions. If the premises are not habitable, then the tenant may choose to (1) refuse to pay rent, (2) remedy the defect and offset the cost against the rent, or (3) defend against eviction. Generally, before the tenant can withhold the rent or remedy the defect, she must first notify the landlord of the problem and give him a reasonable opportunity to correct it. The tenant is not required to vacate the premises.

Leading questions in cross-examination

There is generally no restriction on the use of leading questions during cross-examination. Fed. R. Evid. 611(c). If questions concerning matters beyond the subject matter of the direct examination are permitted, however, those inquiries must be made as if on direct examination. Fed. R. Evid. 611(b). The use of leading questions may also be restricted when the cross-examination is one of form rather than fact, such as when a party is cross-examined by his own lawyer after having been called as a witness by an opposing party. Fed. R. Evid. 611, Notes of Advisory Committee on Rules.

Battery - Lack of Consent

There is no battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation (such as being bumped on a crowded subway or playing in a football game).

Conversion vs. Trespass to Chattels

There is no specific rule as to what behavior constitutes conversion, as opposed to trespass to chattels; it is a matter of degree of seriousness. The following factors are considered: (1) The duration and extent of the interference; (2) The defendant's intent to assert a right inconsistent with the rightful possessor; (3) The defendant's lack of good faith; (4) The expense or inconvenience to the plaintiff; and (5) The extent of the harm to the chattel. Generally, the greater the degree of these factors, the greater the likelihood that a conversion has occurred. Conversion is an exercise of dominion or control over the plaintiff's personal property such that the court is justified in requiring the defendant to pay the plaintiff the full value of the property.

Scope of Federal Question Jurisdiction

There is no uniform, bright-line standard for determining whether an action arises under the Constitution, laws, or treaties of the United States. In general, if the cause of action in question is expressly created by federal law, and federal law provides the underlying right, then federal question jurisdiction will exist. If a right is created by federal law, and a cause of action may fairly be implied and was intended by Congress, then federal jurisdiction is likely to be found. If the cause of action is neither expressly nor implicitly created by federal law, then the complaint must involve a real and substantial issue of federal law, and its determination must necessarily depend on resolution of the federal issue. A federal corporation (a corporate entity incorporated through an act of Congress) does not, simply by being a federal corporation, confer federal jurisdiction on a federal court. However, if the United States owns more than 50% of the corporation's capital stock, then the corporate entity will be considered a federal agency and may then be sued in federal court. Federal law includes the U.S. Constitution, federal statutes, federal administrative regulations, and U.S. treaties. State laws incorporating standards of federal law are not considered laws of the United States for the purposes of § 1331. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986). Merrell Dow held that when a substantive federal statute (e.g., the Federal Food, Drug, and Cosmetic Act) does not provide a federal remedy, then an alleged violation of that statute as an element of a state law complaint does not automatically establish § 1331 jurisdiction. Rather, federal courts have discretion to determine whether a federal issue or interest is important enough in a specific case to justify the exercise of jurisdiction.

Strict Product Liability - Seller

To be subject to strict liability for a defective product, the defendant must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff.

Joinder and in personam jurisdiction

There must be personal jurisdiction over the required party. A required party may be served within 100 miles from where the summons was issued, even if the service is outside of the state and beyond its long-arm statute jurisdiction. Rule 4(k)(1)(B).

Impleader and in personam jurisdiction

There must be personal jurisdiction over the third-party defendant for impleader to apply. Third parties joined by impleader may be served within 100 miles of where the summons was issued, even if the service is outside of the state and beyond its long-arm statute jurisdiction. Rule 4(k)(1)(B).

Forum Non Conveniens

This common-law doctrine allows a court to dismiss an action—even if personal jurisdiction and venue are otherwise proper—if the court finds that the forum would be too inconvenient for parties and witnesses and that another, more convenient, venue is available. To convince a court to invoke the doctrine of forum non conveniens, the defendant ordinarily bears a heavy burden to displace the plaintiff's chosen forum. This doctrine has been codified and relaxed with respect to transfers between federal district courts (see E.1., "Change of Venue When Original Venue Is Proper," supra). Consequently, this doctrine as a common-law rule is now used by a federal district court primarily when the forum that is deemed most appropriate for the action is a foreign court, since the federal statute does not apply in such a circumstance. In determining whether the common-law doctrine applies, some of the factors that are generally considered include (i) the availability of an alternative forum, (ii) the law that will apply, and (iii) the location of the parties, witnesses, and evidence.

Disclaimer, waiver, and notice of the Implied Warranty on New Homes

This implied warranty may be disclaimed by the builder or waived by the homeowner if done so with language that is clear and unambiguous, but a general disclaimer (e.g., "property is sold as is") is typically not sufficient. Some jurisdictions require the homeowner to give the builder notice of the defect and an opportunity to correct it before bringing suit.

Present Estates

To be categorized as a freehold, an estate must be (1) immobile (either land or some interest derived from or affixed to land) and (2) for an indeterminate duration (as opposed to a leasehold, which is for a limited duration). The owner of a present estate has the right to currently possess the property.

Parol Evidence Rule Exception - the Plain-Meaning Rule

This rule provides that the objective definitions of contract terms control the meaning of the contract, regardless of whether the meaning corresponds with the actual intent of the parties. Sometimes, courts will go outside the document to clarify the ordinary meaning of terms that are ambiguous or overly vague.

General Verdict with special interrogatories

This type of verdict couples a general verdict with a special verdict. It is used to ensure that the jury independently considered the material facts of the case in arriving at its verdict. If the answers to the interrogatories are consistent with each other but not with the general verdict, the court may (i) approve a judgment that is consistent with the answers, notwithstanding the general verdict, (ii) direct the jury to reconsider its answers and verdict, or (iiI) order a new trial. In cases of inconsistency between the answers, the court cannot enter a judgment, but must either direct the jury to reconsider its answers or order a new trial. Rule 49(b).

Respondeat Superior - Torts Committed by Independent Contractors

Those who hire independent contractors are generally not vicariously liable for the torts of the independent contractors. An independent contractor is one hired to accomplish a task or result but who is not subject to a right of control by the employer. (1) Independent contractors tend to have specialized skills or knowledge, e.g., physicians and plumbers; and (2) Independent contractors tend to work for many employers, while employees more often work for a single employer.

Rule 4(k)(2)

Three conditions must be present for a federal court to have personal jurisdiction over a defendant under Rule 4(k)(2): i) The plaintiff's claims must be based on federal law; ii) No state court can exercise personal jurisdiction over the defendant; iii) The exercise of jurisdiction must be consistent with the U.S. Constitution and laws (i.e., the defendant must have "minimum contacts" with the United States). This provision is generally used for non-U.S. residents who have contacts with the Unites States generally, but not with any one state in particular.

Title Insurance

Title insurance protects owners or lenders against the actual monetary loss due to such matters as title defects and lien problems. Title defects are most often created as the result of errors in the title-examining process, as well as title-recording errors. Forged instruments and undelivered deeds also create title defects because they do not transfer title and are void. Lien problems result from the invalidity or unenforceability of mortgage liens. Additionally, tax liens and judgments create defects that do not allow for the proper transference of title.

Battery - Intent

To act intentionally, a defendant must act with either (i) the purpose of bringing about the consequences of that act or (ii) the knowledge that the consequences are substantially certain to occur. In some cases, depending on the jurisdiction and the factual context, a defendant may be liable if he intends merely to bring about the contact. While the contact must be harmful or offensive, the defendant need not intend that result (single intent rule). In other cases, depending on the jurisdiction and the factual context, a defendant may be required not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive (double intent rule). The doctrine of transferred intent applies to battery.

Protective measures under joinder

To avoid unfairness or hardship to any party, the court may order separate trials on any claims joined or may make any other order to prevent delay or undue expense to any party. Rule 20(b).

Citizenship in Diversity Jurisdiction

To be a citizen of a state for the purposes of § 1332, a person must be a citizen of the United States and a domiciliary of the state. In general, a person is a domiciliary of the state in which he or she is present and intends to reside for an indefinite period. Janzen v. Goos, 302 F.2d 421 (8th Cir. 1962). A person can have only one domicile at a time. The presumption is that a place of domicile continues until it is definitively changed, i.e., when a person: i) Establishes presence in the new place; and ii) Manifests intent to remain there for an indefinite period. Consequently, a compulsory change of domicile, such as for incarceration or military purposes, will not result in a change in domicile. Domicile is determined at the time the action is commenced. Once subject matter jurisdiction has been established, it will not be affected by a party's change of domicile.

Length of Life Estate

To be a life estate, the interest granted must be measured by the life of a human being and be qualified only by non-time limitations. Unless otherwise specified, the measuring life is the grantee. A life estate is fully transferable during the life of the person by whom the life estate is measured. Because the interest terminates at the death of the person by whom the life estate is measured, a life estate measured by the grantee's life is generally neither devisable nor descendible. If the life estate is received by will or intestacy, the life tenant may renounce the estate if he so chooses. In the states that have done away with the common-law curtesy and dower custom, a surviving spouse has a statutory right to take a portion of the estate.

Private Nuisance - Physical Invasion

Trespass requires a physical invasion of the plaintiff's property. Nuisance does not require physical invasion, but physical invasion may constitute a nuisance.

Capacity in agency relationships generally

To become a principal and be bound by an agent's actions, a person must have capacity both to consent to the agency relationship and to enter into the transaction to which the agent purports to bind the principal. In contrast, virtually any person can serve as an agent. A person can serve as an agent as long as he has the physical and mental capability to do whatever he has been appointed to do.

Strict Product Liability - Standing

To bring a strict-liability action, a plaintiff is not required to be in privity of contract with the defendant. Anyone foreseeably injured by a defective product or whose property is harmed by the product may bring a strict-liability action. Appropriate plaintiffs include not only purchasers, but also other users of the product and even bystanders who suffer personal injury or property damage.

Premarital Agreements - Fair and Reasonable

To determine if a premarital contract's terms are reasonable, the courts consider the parties' wealth, age, and health. Courts will look at both whether the agreement is fair both procedurally and substantively. An agreement obtained by fraud, duress, or undue influence may be set aside as procedurally unfair. When a mediator participates in the creation of a settlement agreement, misconduct by the mediator (e.g., bias toward one spouse) can give rise to grounds for setting aside the agreement. If a confidential relationship between the spouses exists, then the burden of proving the fairness of the agreement or the absence of undue influence may be placed on the dominant spouse. Courts may also look at the terms of the agreement itself to see if they are so unfair as to be unconscionable. The current trend is for courts to enforce contractual agreements that may not be fair as long as there has been fair disclosure.

Intentional Interference With a Contract

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that: i) A valid contract existed between the plaintiff and a third party; ii) The defendant knew of the contractual relationship; iii) The defendant intentionally interfered with the contract, causing a breach; and iv) The breach caused damages to the plaintiff.

Racial Discrimination under FHA

To establish racial discrimination under the FHA, the plaintiff need only show a disparate racial impact, not a racial intent or purpose. Tex. Dep't of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507 (2015).

Permissive Joinder of Claims and Subject Matter Jurisdiction

To join a claim under Rule 18, the court must have subject matter jurisdiction over it. If subject matter jurisdiction is based on diversity jurisdiction, then a party may aggregate all claims against an opposing party to satisfy the statutory jurisdictional amount-in-controversy requirement. If the original claim is based on federal question jurisdiction, then a nonfederal claim may be joined only if diversity jurisdiction exists or if the two claims are part of the same case or controversy as the federal claim such that supplemental jurisdiction applies.

Divorce - Cruelty

To prevail on the grounds of cruelty or inhumane treatment, most jurisdictions require that the plaintiff demonstrate a course of conduct by the other party that is harmful to the plaintiff's physical or mental health and that makes the continued cohabitation between the parties unsafe or improper. The conduct of the defendant must be serious and typically cannot be based on one isolated incident. The majority of jurisdictions permit divorces on the basis of cruelty in cases of physical abuse, while only some permit it in cases of only emotional abuse or mental cruelty.

Public Disclosure of Private Facts

To recover, the plaintiff must show that: i) The defendant gave publicity to a matter concerning the private life of another; and ii) The matter publicized is of a kind that: a) Would be highly offensive to a reasonable person; and b) Is not of legitimate concern to the public.

Purposeful Availment and in personam Jurisdiction

To warrant the assertion of in personam jurisdiction, a defendant's contacts with the forum state must be purposeful and substantial, such that the defendant should reasonably anticipate (foresee) being taken to court there. Foreseeability depends on whether a defendant recognizes or anticipates that by running his business, he runs the risk of being party to a suit in a particular state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). This is the "purposeful availment" requirement. There are situations, however, in which it is difficult to discern whether purposeful availment is present. Such is the case when a product is put into the stream of commerce, not necessarily by the manufacturer, but by a party who purchased the product from the manufacturer to use in his product. The manufacturer's product is then put into the stream of commerce. The question remains, did the manufacturer avail himself of the jurisdiction's benefits and laws? The Court is split on this issue and has not been able to reach a cohesive answer. While four justices find sufficiency with the mere knowledge that the product being sold would end up in the stream of commerce, four other justices believe that the manufacturer needed to take an additional step to have availed itself of the forum. Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102 (1987).

Quasi-In-Rem Jurisdiction Due Process

Today, in a quasi-in-rem action, as in in-rem and in-personam actions, it is generally required that the defendant whose property is subject to the judgment must have sufficient minimum contacts with the forum state to justify the exercise of personal jurisdiction over the matter. Shaffer v. Heitner, 433 U.S. 186 (1977). As a consequence, a quasi-in-rem action either can be pursued as an in-personam action due to satisfaction of the minimum contacts test or cannot be brought due to lack of personal jurisdiction over the defendant. When the action directly relates to rights in the property, such as is the case with regard to the foreclosure of a mortgage or other lien, the minimum contacts requirement is satisfied because of the relationship between the claim and the property. Provided the owner of the property is given proper notice and an opportunity to be heard, the judgment is personally binding on the defendant. If the defendant chooses not to appear, the judgment of a federal district court is confined to the property that is the subject of the action. 28 U.S.C. § 1655. When the underlying action does not relate to the rights in the property, but the property instead serves only as the relief sought, such as in the case of breach of contract action where the contract does not involve the in-state property, the minimum contacts requirement likely is not satisfied and the court lacks personal jurisdiction to adjudicate the matter.

Municipal Government Tort Liability

Today, the liability of municipalities, other local governments, and their agencies usually is governed by the provisions of state tort claims acts. Traditionally, immunity attached to the performance of traditional governmental functions (such as police and court systems) but did not attach when a municipality was performing a "proprietary" function that often is performed by a private company (such as utilities and parking lots).

Trade Libel

Trade libel imposes tort liability for statements injurious to a plaintiff's business or products. Unlike defamation, it is not intended to compensate for harm to the personal reputation of the owner/manager of the business. Proof of special damages is required. Damages for mental suffering are not available. The plaintiff must prove: i) Publication; ii) Of a false and derogatory statement; iii) With malice; iv) Relating to the plaintiff's title to his business property, the quality of his business, or the quality of its products; and v) Causing special damages as a result of interference or damage to business relationships. Defenses include truth as well as the privilege of fair competition (e.g., making general comparisons to a competitor's product).

Parol Evidence Rule Exception - Trade Useage

Trade usage is any practice or method of dealing in the particular business or industry that is practiced with such regularity so as to justify an expectation that it will be practiced in the instant case. UCC § 1-303(c).

Transfer of Easement in Gross

Traditionally, an easement in gross could not be transferred, but most courts now allow transfer if it is for commercial use or if the parties intended it to be transferable. However, like easements appurtenant, the burden of an easement in gross is transferred automatically with the transfer of the servient estate. Whether a transferable easement in gross can be apportioned turns on whether the easement in gross is exclusive or non-exclusive. A non-exclusive easement may not be divided up, but an exclusive easement may be. However, the division of an exclusive easement in gross is subject to the "one stock" rule. Under this rule, the use that the transferees make of the easement collectively is limited by the use that the transferor made of the easement (i.e., his "stock").

Unreasonably Proceeding in the Face of Known Specific Risk

Traditionally, and in many jurisdictions today, a plaintiff's voluntarily encountering a known, specific risk is an affirmative defense to negligence that bars recovery. Most courts hold that the voluntary encountering must also be unreasonable. In contributory-negligence jurisdictions and in a minority of comparative-fault jurisdictions, this form of assumption of the risk remains a total bar to recovery. In most comparative-fault jurisdictions, this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff's awareness of the risk is taken into account in determining the degree to which the plaintiff is at fault, but it also can be considered in determining the reasonableness of the plaintiff's or the defendant's actions.

Trespass to Land generally

Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another.

Federal Question and Federal Common Law

Traditionally, federal courts have determined that federal interests warrant the application of federal common law in the following instances: i) Admiralty cases; ii) When the United States is a party to the case; iii) Cases involving interstate disputes; iv) Cases implicating relations with foreign countries; v) Cases in which the government acts in a proprietary role (e.g. enters into contracts, issues commercial paper, and oversees regulatory programs); and vi) When Congress has left a gap in a statutory scheme.

Immunities from Tort Liability generally

Traditionally, government entities, charities, and family members were immune from liability. Today, these immunities have been largely eliminated, but the rules governing the liability of these defendants continue to differ from those governing other tortfeasors.

Heartbalm Actions

Traditionally, if a marriage failed to take place, the jilted party was permitted to file a heartbalm action, which is a civil suit for money damages based on the damage to the jilted party's reputation when the engagement was broken. Abolished by the majority of states, only nine jurisdictions (Hawaii, Illinois, Mississippi, Missouri, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah) currently recognize heartbalm actions, which include actions for breach of promise to marry, seduction, alienation of affection, criminal conversation, and jactitation of marriage (falsely holding oneself out as married).

Mortgagor's Right of Prepayment

Traditionally, in the absence of a clause permitting a mortgagor to prepay a mortgage obligation, the mortgagor had no such right. Under the modern trend, the presumption is reversed, and prepayment, in part as well as in whole, is permitted unless the mortgage note contains a clause prohibiting prepayment. With regard to the imposition of a prepayment penalty by the mortgagee, about half of the states prohibit it or place restrictions of various sorts on the imposition of the penalty (e.g., limitation on the interest rate of the loan, limitation on the amount or rate of the penalty, limitation of the penalty to the first few years of the mortgage) if the mortgage is on residential property. Restatement (Third) of Property: Mortgages § 6.1.

Interspousal Tort Immunity

Traditionally, interspousal immunity prevented one spouse from suing the other in a personal-injury action. In most jurisdictions today, however, interspousal immunity has been extinguished, and either spouse can now institute a cause of action for personal injury against the other spouse.

Parent-Child Tort Immunity

Traditionally, parents were immune from tort claims brought by their children. In recent decades, however, there has been a clear trend toward abolishing or greatly restricting parental immunity, but abrogation has proceeded more slowly than in the case of interspousal immunity. Courts generally allow parents to be held liable in areas other than core parenting activities. For example, most states allow children to sue parents: (1) For injuries arising from automobile accidents; (2) In extreme cases, such as those involving sexual abuse and intentional tortious conduct; and (3) When the parent is acting in a dual capacity, such as when the parent is a physician treating the child for an injury (medical malpractice claim allowed).

Negligence - Physicians

Traditionally, physicians were held to the "same or similar locale" rule of custom: did the physician's actions comport with those customarily employed by doctors in the same locale or in similar localities? During the past 40 years, however, many jurisdictions have changed to a national standard: did the physician conform her conduct to the customary practice of other physicians in similar circumstances? Some jurisdictions now require medical specialists to comply with the national standard while holding general practitioners to the "same or similar locale" standard.

Transfer of the deed to the grantee

Transfer of a deed to the grantee creates a presumption that the grantor intended to make a present transfer of the property interest. Parol evidence is admissible to show that the grantor lacks such intent (e.g., the grantor intended only to create a mortgage, not to effect an outright transfer). However, when the grantor transferred the deed to the grantee subject to an oral condition (i.e., a condition that does not appear in the deed), parol evidence is not admissible, and the condition is not enforceable.

Transferees of collateral

Transferees of the collateral are persons who obtain full title to the goods as a result of a transfer of the collateral from the debtor.

Torts That Allow Transferred Intent

Transferred intent applies only to the following intentional torts: battery, assault, false imprisonment, trespass to chattels, and trespass to land. It does not apply to intentional infliction of emotional distress or conversion.

Intentional Tort - Transferred Intent

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits either: (1) A different intentional tort against that person; (2) The intended tort against a different person; or (3) A different intentional tort against a different person.

Respondeat Superior - Detour

Travel by an employee during the workday that involves a personal errand may be within the scope of employment when the errand is merely a detour (i.e., a de minimis departure from an assigned route).

Trespass to Land - Distinguished from Nuisance

Trespass always requires an invasion or intrusion of land; nuisance may or may not involve intrusion. Trespass protects the possessor's interests in the land; nuisance protects the use and enjoyment of land. If no physical object enters onto the plaintiff's land (e.g., the defendant's floodlights project onto the plaintiff's land, or damage results from the defendant's blasting), then the case is generally treated as a nuisance or strict liability action.

Defamation - Truth

Truth is an absolute defense to a claim of defamation. A truthful statement is not defamatory. A statement that contains slight inaccuracies may nevertheless be considered to be true and therefore not defamatory. A statement that a person has engaged in conduct that is substantially different from the conduct in which the person did in fact engage is not considered to be true, even if the person's actual conduct was equally or more morally reprehensible.

State Law Exclusions from Diversity Jurisdiction

Two areas of state law are generally excluded from diversity jurisdiction: probate matters (probate of a will or administration of an estate) and domestic relations actions (divorce, alimony, custody disputes). Note, though, that these exceptions apply only to cases that are primarily probate or marital disputes.

Real Estate Broker Types of Listings

Typical, a seller's agent may have a nonexclusive agency, in which the agent has the right to find a buyer in competition with other agents, or an exclusive agency, in which the seller agrees not to engage any other person as an agent. In either type of agency, the seller who independently finds a buyer is not obligated to pay the agent a commission. By contrast, a seller may also enter into agreement with the agent under which the agent has the exclusive right to sell the real property no matter who procures the buyer (i.e., an exclusive listing). In this arrangement, the seller is obligated to pay the agent a commission, even if the seller independently finds the buyer.

Security Interest Agreement

Typically, Article 9 applies to a consensual agreement that provides for a security interest. If the substance of the transaction is the creation of a security interest, then Article 9 applies regardless of the form of the transaction or the name given to it by the parties. It is, therefore, the substance of the transaction, not its form, that determines whether Article 9 is applicable. UCC § 9-109(a), cmt. 2. An agreement is the bargain-in-fact between the parties. By contrast, a contract is the legal obligation that results from the agreement. UCC § 1-201(3), (12).

Condominiums

Typically, a condominium is created pursuant to a state statute by filing a declaration (or master deed) and a plat with the real property recording office for the locality in which the condominium is located. The declaration, together with any bylaws, sets out the rights and obligations of the unit owners with respect to each other, and it fixes each owner's share of the condominium for the purposes of allocating expenses, taxes, and voting rights. The plat typically describes the physical boundaries of each unit and the common areas. A condominium may contain solely residential or commercial units or a mixture of the two.

Real Estate Broker as Seller's Agent

Typically, a real estate broker or agent serves as the seller's agent. There is usually a listing agent, who deals directly with the seller and who may help to set the asking price and assume primary responsibilities for advertising the property for sale. There is usually also a selling agent, who serves as a subagent of the listing agent and finds a buyer for the property. Generally, the listing agent and the selling agent share in the commission paid by the seller. In general, for a selling agent to be entitled to a commission, her efforts must be the procuring cause for the buyer's purchase of the property. In other words, the resulting sale must be induced primarily by those efforts. Most contracts provide for payment of a commission to the real estate broker upon the procurement of a buyer who is ready, willing, and able to purchase the property on terms that are agreeable to the seller. Consequently, a broker generally has a right to a commission when the contract of sale is executed or, if the contract is subject to conditions, when the conditions are satisfied, even if the sale does not take place. However, in a minority of states, the broker is not entitled to a commission if the buyer defaults ("no sale, no commission" rule), though a listing agreement may provide the broker with a share of any recovery gained by the seller from the defaulting buyer (e.g., retention of a deposit).

Referendum Zoning

Typically, zoning rules are promulgated by an elected, local government entity (e.g., city council, board of supervisors). Zoning imposed by popular vote (i.e., referendum zoning) rather than a local government body does not violate the Due Process Clause of the Fourteenth Amendment. Eastlake v. Forest City Enters., Inc., 426 U.S. 668 (1976) (any change in proposed land use agreed to by the city council had to be approved in a referendum by a 55 percent vote). Zoning by referendum does not violate substantive due process under the U.S. Constitution, even if the local governmental decision is characterized as an administrative rather than legislative act.

In Personam Jurisdiction by Attachment

Under "attachment" jurisdiction (a type of quasi-in-rem jurisdiction), historically, a plaintiff asserting a personal claim against a defendant could use attachment of property owned by the defendant and located in the forum state as a device to obtain jurisdiction and, if successful, satisfaction of the claim, at least to the extent of the value of the property attached. However, since Shaffer v. Heitner, 433 U.S. 186 (1977), there must be minimum contacts between the defendant and the forum state in order to establish jurisdiction. If the claim is not related to the ownership of the attached property, mere ownership of the attached property is generally not sufficient to satisfy the minimum contacts test. If there are such contacts, then the court generally has in personam jurisdiction over the defendant and attachment jurisdiction is unnecessary.

Final Judgment Rule

Under 28 U.S.C. § 1291, the federal courts of appeals have jurisdiction over appeals from the final judgments of the district courts. A final judgment is a decision by the court on the merits that leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U.S. 229 (1945). Judicial economy alone is insufficient grounds to expand a court's jurisdiction to include nonfinal judgments. Parties must demonstrate that review of the nonfinal judgment together with the appealable order will assist the court in reviewing the appealable order. Swint v. Chambers County Comm'n., 514 U.S. 35 (1995). Pursuant to Rule 54(b), if more than one claim is presented in a case, or if there are multiple parties, then the district court may direct entry of a final judgment as to one or more issues or parties, but only if the court "expressly determines that there is no just reason for delay." This modifies the rule's default position that any order or other decision, however designated, that adjudicates fewer than all of the claims or the rights and liabilities of fewer than all of the parties will not end the action as to any of the claims or parties, and it may be revised at any time before the entry of a judgment adjudicating all of the claims and all of the parties' rights and liabilities.

Interpleader Exception to Diversity Jurisdiction

Under 28 U.S.C. § 1335, the Federal Interpleader Act, the holder of property that is claimed by two or more persons may deposit the property with a court to determine ownership. Under the Act, there need be only two adverse claimants of diverse citizenship to establish federal jurisdiction.

Supplemental Jurisdiction to Joinder of defendants

Under 28 U.S.C. § 1367(b), supplemental jurisdiction does not apply to defendants sought to be joined under the permissive joinder rule in a case based exclusively on diversity jurisdiction in which exercising jurisdiction would destroy diversity. Thus, if the claims are made solely on the basis of diversity jurisdiction, then there must be complete diversity between the plaintiffs and the defendants, and each claim must exceed the jurisdictional amount in controversy of $75,000.

Notice of Removal

Under 28 U.S.C. § 1446, a defendant who wants to remove a state court action to federal district court must file a notice of removal with the district court within 30 days after receipt by or service on that defendant of the initial pleading or summons. The notice must be: i) Signed pursuant to Rule 11 (see § V.I. Rule 11, infra) and contain a short and plain statement of the grounds for removal; ii) Filed in the district court for the district and division in which the state action is pending; and iii) Accompanied by copies of all process, pleadings, and orders served on the defendants seeking removal. In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal. § 1446(b). In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal. § 1441(c)(2). In addition, a class action based on the Class Action Fairness act (CAFA) may be removed by any defendant without the consent of all defendants. §1453(b).

Full Faith and Credit - Federal to State

Under 28 U.S.C. § 1738, federal courts must also give full faith and credit to state-court judgments. The same rules as discussed above for states apply with respect to a federal court.

Statute of Limitations on Breach of Sales Contract

Under Article 2, an action for breach of any sales contract must be commenced within four years after the cause of action accrues. In general, a cause of action accrues when the breach occurs, regardless of whether the aggrieved party knows of the breach. A breach of warranty accrues when delivery is made. If a warranty expressly extends to the future performance of the goods, the cause of action will accrue when the breach is or should have been discovered by the aggrieved party. By their original agreement, the parties may reduce the four-year limitations period of Article 2 to not less than one year, but they may not extend it.

Express Warranty Conflict With Terms

Under Article 2, words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty are construed as consistent with each other, but negation or limitation is inoperative to the extent such construction is unreasonable. Thus, disclaimer clauses that grossly conflict with the express warranties, such as "all warranties, express or implied, are disclaimed," are ignored. Note, however, that the parol evidence rule may bar evidence of oral express warranties or disclaimers of such warranties. UCC § 2-316.

Methods of Perfection

Under Article 9, there are four ways by which a secured party can perfect a security interest: i) Filing of a financing statement; ii) Possession of the collateral; iii) Control over the collateral; and iv) Automatic perfection (either temporary or permanent). If there is another statute that governs perfection of a security interest, that statute may provide another method of perfection.

Mirror-Image Rule

Under Common Law, the acceptance must mirror the terms of the offer. Any change to the terms of the offer, or the addition of another term not found in the offer, acts as a rejection of the original offer and as a new counteroffer. Mere suggestions or inquiries, including requests for clarification or statements of intent, made in a response by the offeree do not constitute a counteroffer. A conditional acceptance terminates the offer and acts as a new offer from the original offeree.

Signature under Rule 11

Under Rule 11(a), every pleading, written motion, and other paper filed with the court must be signed by at least one attorney of record, or by a party personally if unrepresented. The paper must state the signer's address, e-mail address, and telephone number. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attention of the attorney or party.

Additional time for responses after certain kinds of service

Under Rule 6(d), when a party may or must act within a specified time after being served and service is made under Rule 5(b) by mail, leaving with the clerk, or other means consented to, three days are added to the prescribed time period. Rule 5(b) governs service of papers filed after the original complaint, including written motions, discovery, and other pleadings.

Certification under Rule 11

Under Rule 11(b), by presenting to the court a pleading, written motion, or other paper, an attorney or unrepresented party certifies that to the best of her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: i) The paper is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; ii) The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; iii) The factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and iv) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. "Presenting" a pleading under Rule 11 includes "signing, filing, submitting, or later advocating" a position presented in the pleading.

Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)

Under Rule 12(b)(6), a claim for relief can be dismissed if it either fails to assert a legal theory of recovery that is cognizable at law or fails to allege facts sufficient to support a cognizable claim. In deciding a motion under Rule12(b)(6), courts treat all well-pleaded facts of the complaint as true, resolve all doubts and inferences in the plaintiff's favor, and view the pleading in the light most favorable to the plaintiff.

Motion to Strike

Under Rule 12(f), if a pleading contains any insufficient defense, or redundant, immaterial, impertinent, or scandalous material, then the court, upon motion or upon its own initiative, may order that such defense or material be stricken.

Response to Complaint generally

Under Rule 12, within 21 days of service of process, a defendant must respond to a complaint either by an answer or by a pre-answer motion, or she must seek additional time to answer. If a defendant does not take one of these steps, then she risks a default.

Permissive Counterclaim

Under Rule 13(b), a pleading may state as a counterclaim against an opposing party any claim that is not compulsory. Thus, a party has discretion as to whether to raise the counterclaim in the action before the court or in a separate action.

Amendment of Pleading by Right

Under Rule 15(a), a party may amend a pleading once as of right within 21 days if no responsive pleading is required, or, if a responsive pleading is required, within 21 days of service of the responsive pleading or within 21days of being served with a motion under Rule 12(b), whichever is earlier. Thus, unlike previously, a plaintiff may amend his complaint even after being served with an answer (up to 21 days), but he is also limited to 21 days to amend after being served with a Rule 12(b) motion. A party may amend a pleading during and after a trial if doing so will conform to the evidence and as long as the opposing party had an opportunity to prepare. Due process is required for the amended pleading.

Relation back of new party

Under Rule 15(c)(1)(C), if the amendment changes the party or the naming of the party against whom a claim is asserted, then it will relate back to the date of the original pleading if: i) It asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading; ii) Within 90 days after the filing of the original complaint, the party to be brought in by amendment receives notice of the action such that he will not be prejudiced in defending on the merits; and iii) The party to be brought in by amendment knew or should have known that the action would have been brought against him, but for a mistake concerning the proper party's identity. The proper focus when applying the third element is on the defendant's knowledge, rather than information in the plaintiff's possession. Although the latter may be relevant, it is not dispositive. Krupski v. Costa Croceiere, 560 U.S. 538 (2010).

Relation back of new claim

Under Rule 15(c)(1), an amendment to a pleading will relate back to the date of the original pleading when the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out, or attempted to be set out, in the original pleading. This may be important for the purposes of complying with the applicable statute of limitations. An amendment will also relate back to the date of the original pleading if the law that provides the applicable statute of limitations allows relation back.

Pretrial Conferences

Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action (see § VII.F.2. Sanctions, supra). Dismissal of an action is a severe sanction, and generally it is appropriate only when a party's conduct is serious, repeated, extreme, and otherwise inexcusable.

Necessary Parties for joinder under subject matter jurisdiction

Under Rule 19(a), a person who is subject to service of process and whose joinder will not deprive the court of subject matter jurisdiction or destroy venue must be joined as a party if: i) Complete relief cannot be provided to existing parties in the absence of that person; or ii) Disposition in the absence of that person may impair the person's ability to protect his interest; or iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations. A necessary party is therefore a person whose participation in the lawsuit is necessary for a just adjudication. The Supreme Court has specifically held that tortfeasors facing joint and several liability are not parties who must be joined under Rule 19. Temple v. Synthes Corp., 498 U.S. 5 (1990).

Discovery Scope in general

Under Rule 26(b)(1), discovery is generally permitted with regard to any non-privileged matter relevant to any party's claim or defense in the action and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Indispensable parties for joinder

Under Rule 19(b), if a necessary party cannot be joined because of jurisdictional or venue concerns, then the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or be dismissed. Among the factors for the court to consider are: i) The extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; ii) The extent to which any prejudice could be reduced or avoided by protective provisions in the judgment, shaping the relief, or other measures; iii) Whether a judgment rendered in the person's absence would be adequate; and iv) Whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. When the court dismisses an action because of the inability to join a necessary party, the party is said to be "indispensable."

Federal Interpleader Rule

Under Rule 22, persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Such joinder is proper even though the claims of the claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical or even though the plaintiff denies liability in whole or in part to any or all of the claimants. A defendant who is exposed to similar liability may seek interpleader through a cross-claim or counterclaim. Rule 22(a). The primary standard for determining the propriety of an interpleader action under Rule 22 is whether the party bringing the action legitimately fears multiple claims against the property.

Risk of Prejudice class action

Under Rule 23(b)(1), the class is maintainable if the prosecution of separate actions would create the risk that the class opponent would become subject to incompatible standards of conduct resulting from inconsistent adjudications, or if prosecution of the claims through separate actions would, as a practical matter, impair the interests of the class members.

Final Equitable Relief class action

Under Rule 23(b)(2), a class seeking final equitable relief may be certified if the class shares a general claim against the opposing party. The class can also seek damages, but the equitable relief must be the primary relief sought.

Common legal or factual questions class action

Under Rule 23(b)(3), a class can be certified if questions of law or fact that are common to the class members predominate over any questions affecting only individual members, and a class action is the superior method in bringing about a fair and efficient adjudication of the controversy. In making this determination, the court must consider, among other things: i) The class members' interests in individually controlling the prosecution or defense of separate actions; ii) The extent and nature of any litigation concerning the controversy already begun by or against class members; iii) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and iv) The likely difficulties in managing a class action.

Settlement or Dismissal of class action

Under Rule 23(e), the claims, issues, or defenses of the certified class may be voluntarily settled, compromised, or dismissed only with the approval of the court. When a proposal for settlement or dismissal is made to the court, the court must direct notice in a reasonable manner to all class members who would be bound by the proposal. If the proposal would bind class members, then the court may approve only after a hearing and on finding that it is fair, reasonable, and adequate. The parties seeking approval must file a statement identifying any collateral agreements made in connection with the proposal.

Intervention as of right

Under Rule 24(a)(1), a nonparty has the right to intervene in an action when a federal statute confers the right, and the nonparty timely moves to intervene. Additionally, under Rule 24(a)(2), upon a timely motion, a nonparty has the right to intervene when: i) The nonparty has an interest in the property or transaction that is the subject matter of the action; ii) The disposition of the action may, as a practical matter, impair the nonparty's interest; and iii) The nonparty's interest is not adequately represented by existing parties. The criteria for intervention as of right under Rule 24(a)(2) are similar to the criteria for compulsory joinder under Rule 19(a). The burden of proof is on the person seeking to intervene.

Permissive Intervention

Under Rule 24(b), the court may allow intervention, upon timely motion, when either: i) The movant has a conditional right to intervene under a federal statute; or ii) The movant's claim or defense and the original action share a common question of law or fact. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Initial Disclosures

Under Rule 26(a)(1), unless otherwise agreed by stipulation or ordered by the court, each party must provide to the other parties: i) The name and, if known, address and telephone number of each individual likely to have discoverable information, along with the subjects of that information that the disclosing party may use to support its claims or defenses, unless the use would be solely for purposes of impeachment; ii) A copy, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; iii) A computation of each category of damages claimed by the disclosing party, who must also make available for inspection and copying the documents or other evidentiary material on which each computation is based, including materials bearing on the nature and extent of injury, unless privileged or protected from disclosure; and iv) For inspection and copying, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. Pursuant to Rule 26(a)(1)(E), a party must make its initial disclosures based on the information that is then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party's disclosures, or because another party has not made its disclosures.

Time for pretrial disclosures

Under Rule 26(a)(3)(B), unless the court orders otherwise, these disclosures must be made at least 30 days before trial.

Methods of service on a US officer or employee sued individually

Under Rule 4(i)(3), to serve a U.S. officer or employee in an individual capacity for an act or omission occurring in connection with duties performed on behalf of the United States, a party must serve the United States and also serve the officer or employee under the normal rules for serving an individual.

Discovery and Experts

Under Rule 26(b)(4)(A), a party is entitled to depose any expert witness of an opposing party whose opinions may be presented at trial. Rule 26(b)(3) protects drafts of any expert report or disclosure required under Rule26(a)(2). See § VII.A.2. Disclosure of Expert Testimony, supra. Any communications between the party's attorney and an expert witness who is required to provide a report are also protected, except to the extent that the communications (i)relate to the expert's compensation, (ii) identify facts or data that the party's attorney provided and that the expert considered in forming his opinion, or (iii)identify assumptions that the party's attorney provided and the expert relied upon. If the expert was retained or specially employed by another party in anticipation of litigation or to prepare for trial but is not expected to be called as a witness, then discovery is permitted only on a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. Rule 26(b)(4)(D). A report of an examining physician who is not expected to testify, however, can be obtained as provided under Rule 35(b).

Claims of Privilege from Discovery

Under Rule 26(b)(5)(A), whenever a party withholds information on the basis of a privilege, such as the attorney-work-product privilege, the party must expressly state the claim of privilege and describe the materials or communications not produced in a manner that will enable other parties to assess the applicability of the privilege or protection.

Protective Orders in Discovery

Under Rule 26(c), the court may, for good cause, enter orders to protect parties and other persons from annoyance, embarrassment, oppression, or undue burden or expense resulting from discovery. For example, a party may seek a court order limiting the time and manner of conducting a physical examination, and a nonparty who is served with a subpoena to attend a deposition may, by filing a motion to quash the subpoena, seek a court order to that effect.

Rule 26(f)

Under Rule 26(f), except in a proceeding exempted from the initial-disclosure rules or if the court orders otherwise, the parties must confer as soon as practicable, and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b) (see § VII.G. Pretrial Conferences, infra) to: i) Consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; ii) Make or arrange for the automatic disclosures required by Rule 26(a)(1); iii) Discuss any issues about preserving discoverable information; and iv) Develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The discovery plan must state: i) The parties' views and proposals on the discovery that may be needed in the case; ii) The schedule for such discovery; iii) Any modifications and limits to the scope of the parties' required disclosures and discovery; iv) Any issues about electronically stored information or privilege; and v) Any scheduling or protective order that should be entered by the court. The discovery plan must also indicate when the initial automatic disclosures were or are to be made. In addition, the court may decide to hold a pretrial conference if it believes that such a conference will foster a settlement and expedite the trial. An order must be entered after the pretrial conference is held.

Commencement of Proceedings

Under Rule 3, a civil action is commenced by filing a complaint with the court clerk. For the purposes of a federal diversity action, state law will apply to decide when the action commenced for the purposes of the statute of limitations. Walker v. Armco Steel Corp., 446 U.S. 740 (1980). Thus, if state law provides that an action is commenced by service of process on a defendant, rather than by filing with the court, then the state rule will control for the purposes of diversity jurisdiction.

When an oral deposition may be taken

Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a). Without leave of the court, the plaintiffs, the defendants, and the third-party defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of the court must be obtained to: i) Exceed the 10-deposition limitation; ii) Depose a witness a second time; or iii) Depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a).

Answer and objections to interrogatories

Under Rule 33(b)(1), the interrogatories must be answered by the party to whom they are directed or, if that party is a corporation, partnership, association, or governmental entity, by any officer or agent, who must furnish the information available to the party. Each interrogatory must be answered fully and separately under oath, unless the responding party objects to the interrogatory. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is deemed waived, unless the court, for good cause, excuses the failure. Rule 33(b)(2), (3). The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. The court may order or the parties may stipulate to a shorter or longer time. Rule 33(b)(4). The person who makes the answers must sign them, and the attorney who objects must sign any objections. Rule 33(b)(5).

Using answers to interrogatories at tiral

Under Rule 33(c), an answer to an interrogatory may be used to the extent allowed by Federal Rule of Evidence 801(d)(2), whereby a party's answer will generally constitute a party admission. An interrogatory answer could, however, constitute hearsay if offered against another party.

Production of Business Records in response to interrogatory

Under Rule 33(d), if the answer to an interrogatory may be ascertained from the business records (including electronically stored information) or summation of the business records of the responding party, and the burden of deriving the answers is substantially the same for the party serving the interrogatories as for the responding party, then the responding party may answer the interrogatory by specifying the records from which the answer may be derived and providing the party who served the interrogatories with an opportunity to examine and copy such records.

Capacity under Rule 9

Under Rule 9(a), except when required to show that the court has jurisdiction, a pleading need not allege a party's capacity to sue or be sued. To challenge a party's capacity, an opposing party must make a specific denial and state any supporting facts that are peculiarly within the party's knowledge.

Requests to produce documents and inspect land

Under Rule 34(a)(1), a party may serve on any other party a request to produce and to permit the requesting party or its representative to inspect, copy, test, or sample any of the following items in the responding party's possession, custody, or control: i) Any designated documents or electronically stored information (including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations) stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or ii) Any designated tangible things. A party may also serve a request to enter onto another party's land to inspect, measure, survey, photograph, test, or sample the property or a designated object or operation on the property, if relevant to the action. Rule 34(a)(2). Although these requests may be directed only to other parties, nonparties may be compelled to produce documents and other things or submit to an inspection pursuant to a subpoena served under Rule 45. Rule 34(c).

Physical and Mental Exams

Under Rule 35(a), if the mental or physical condition (including blood group) of a party or a person in the legal custody or control of a party is in controversy, then the court may order such person to submit to a physical or mental examination by a "suitably licensed or certified examiner."

Requests for Admission

Under Rule 36, a party may serve upon any other party a written request for the admission of any relevant, non-privileged matters discoverable under Rule 26. The requested matters may relate to statements or opinions of fact or to the application of law to fact, including the genuineness of any documents described in the request. Rule 36(a)(1). Each matter for which an admission is requested must be set forth separately. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. Rule 36(a)(2).

Failure to make automatic disclosures

Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless. This rule applies to the use of such evidence at trial and for motions and hearings, but it does not apply to the use of such evidence for impeachment purposes, because Rule 26(a) does not require disclosure of impeachment evidence or witnesses.

Failure of a party to attend her own deposition, serve answers to interrogatories, or respond to a request for inspection

Under Rule 37(d)(1)(A)(i), if a party fails to appear at her own deposition after being properly noticed, then the court may impose sanctions. A failure to appear will not be excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order. The court may also impose sanctions if a party fails to answer or object to properly served interrogatories under Rule 33 or fails to serve a written response to a properly served request for the production of documents or other things under Rule 34. Rule 37(d)(1)(A)(ii). A party moving for sanctions under such circumstances must certify that she conferred with or attempted to confer with the opposing party in good faith in an effort to obtain a response without court action. Rule 37(d)(1)(B).

Motion to Compel

Under Rule 37, if a party fails to make the automatic disclosures required by Rule26(a) or fails to respond to discovery that has been properly served, the party seeking the information may move to compel such disclosure or discovery. An evasive or incomplete disclosure, answer, or response is treated as a failure to disclose, answer, or respond. Generally, making a motion to compel is a prerequisite to obtaining any sanctions under Rule 37

Jury Demand and waiver

Under Rule 38(b), any party may make a demand for trial by jury. The demand must be in writing. It may be filed separately or made in a pleading. It must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. A party waives a jury trial unless her demand is properly served and filed.

Who Must Give Service

Under Rule 4(c), the plaintiff is responsible for serving the summons and complaint upon the defendant. Service may be made by any nonparty who is at least 18 years old.

Failure to waive service

Under Rule 4(d)(2), if a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, then the court must impose on the defendant the expenses that are incurred in making service and the reasonable expenses, including attorney's fees, of any motion required to collect such service expenses.

Effect of waiver of service

Under Rule 4(d)(3), if a defendant timely returns a waiver of service before being served with process, then the defendant does not have to serve an answer to the complaint until 60 days after the request was sent, or 90 days after it was sent to a defendant outside the United States. This is an incentive to waive service, because the normal time period in which an answer must be served is 21 days after service of process. Rule 12(a)(1)(A). Rule 4(d)(5) specifically provides that waiver of service does not waive any objection to personal jurisdiction or to venue. If the defendant agrees to waive service, then the date on which the plaintiff files the waiver form with the court will be deemed the date of service. Rule4(d)(4). However, the defendant must still answer the complaint within 60 (or 90, if foreign) days from the date on which the notice was sent.

Methods of Service on the US Government

Under Rule 4(i)(1), to serve the United States, a party must: i) Deliver a copy of the summons and complaint to the U.S. attorney (or a designee) for the district where the action is brought, or send a copy by registered or certified mail to the civil-process clerk at the U.S. attorney's office; ii) Send a copy by registered or certified mail to the U.S. Attorney General; and iii) If the action challenges an order of a nonparty agency or officer of the United States, send a copy by registered or certified mail to the agency or officer.

Methods of service on a US agency, officer, or employee sued in an official capacity

Under Rule 4(i)(2), to serve a U.S. agency, officer, or employee sued in an official capacity, a party must serve the United States and also send a copy of the summons and complaint by registered or certified mail to the agency, officer, or employee.

State Jurisdictional Statutes and Federal Personal Jurisdiction

Under Rule 4(k)(1)(A), the service of a summons in a federal action establishes personal jurisdiction over a defendant "who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located." A federal court must generally determine personal jurisdiction as if it were a court of the state in which it is situated. Thus, a federal court will look to state jurisdictional statutes (see §II.B.2.d. Long-arm statutes, infra) to determine if it has personal jurisdiction over the parties before it.

"Bulge Provision"

Under Rule 4(k)(1)(B), the so-called "bulge provision," a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service. See Mississippi Publ'g Corp. v. Murphree, 326 U.S. 438 (1946); Robertson v. R.R. Labor Bd., 268 U.S. 619 (1925). This special rule applies to only two types of parties: a third-party defendant who is joined under Rule 14 and a required party who is joined under Rule19.

Proof of Service

Under Rule 4(l)(1), if formal service is not waived, then the process server must submit proof of service to the court. Generally, this will be by an affidavit of the process server. Failure to make proof of service does not affect the validity of the service.

Dismissal for lack of jurisdiction and res judicata

Under Rule 41(b), a dismissal on jurisdictional grounds, or for lack of venue or failure to join a party under Rule 19, is without prejudice because a court that has no jurisdiction cannot adjudicate a matter on the merits.

Involuntary dismissal for plaintiff failure

Under Rule 41(b), if the plaintiff fails to prosecute or to comply with the Rules or a court order, then a defendant may move to dismiss the action or any claim against him. Unless the court's dismissal order specifies otherwise, a dismissal under Rule41(b) is with prejudice and operates as an adjudication on the merits. A dismissal based on a lack of jurisdiction, improper venue, or failure to join an indispensable party under Rule 19, however, does not operate as an adjudication on the merits.

Voir Dire

Under Rule 47(a), the court may permit the parties or their attorneys to examine prospective jurors or may do so itself. If the court examines the jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper, or it must itself ask any of their additional questions that it considers proper.

Jury Size

Under Rule 48(a), a jury must initially have at least six and no more than 12 members. Having been selected, a juror must participate in the verdict unless dismissed for good cause. There is no provision for the selection of alternate jurors, as is the practice in some states.

Judgment as a matter of law

Under Rule 50(a), once a party has been fully heard on an issue at a jury trial, the court may grant a motion for judgment as a matter of law resolving the issue against a party if the court finds that there is insufficient evidence for a jury reasonably to find for that party. The court may also grant such a motion against the party on any claim or defense that is dependent on a favorable finding on that issue.

Renewed Motion for Judgment as a Matter of Law

Under Rule 50(b), if the court does not grant a motion for judgment as a matter of law, then the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may file a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment. If the motion addresses a jury issue not decided by a verdict, then the renewed motion must be filed no later than 28 days after the jury was discharged. In ruling on the renewed motion, the court may (i) allow judgment on the verdict if the jury returned a verdict, (ii) order a new trial, or (iii) direct the entry of judgment as a matter of law. The same standards apply to the entry of the renewed motion as applied to the initial motion. Under Rule 50(c), if the renewed motion for judgment as a matter of law is granted and the party had alternatively moved for a new trial, the court must also determine whether the motion for a new trial should be granted if the judgment is reversed or vacated on appeal.

Request for Jury Instructions

Under Rule 51, a party has the right to request that the court give specific instructions to the jury regarding its verdict.

motion for summary judgment

Under Rule 56, a motion for summary judgment is applicable to all civil actions and must be granted if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. A genuine issue of material fact exists when a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). In ruling on a motion for summary judgment, the court must construe all evidence in the light most favorable to the nonmoving party and resolve all doubts in favor of the nonmoving party.

Motion for a New Trial

Under Rule 59(a), the court may, on motion, grant a new trial on all issues or with respect to only certain issues or parties. Rule 59 does not specifically list the grounds that will justify a new trial, but in practice the overarching theme is that the court may grant a new trial to prevent a miscarriage of justice. Some of the reasons that have been held to justify a new trial include: i) Error at trial that renders the judgment unfair; ii) Newly discovered evidence that existed at the time of trial was excusably overlooked and would likely have altered the outcome of the trial; iii) Prejudicial misconduct of counsel, a party, the judge, or a juror; iv) A verdict that is against the clear weight of the evidence; v) A verdict that is based on false evidence; or vi) A verdict that is excessive or inadequate. In general, whether a new trial is warranted rests within the sound discretion of the trial court. Montgomery Ward & Co. v. Duncan, 311 U.S. 243 (1940). Under Rule61, the court must disregard all errors and defects that do not affect any party's substantial rights. This is the "harmless error" rule. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in a party's motion. The court must specify the reasons in its order.

Time limits for motions, hearings, and affidavits

Under Rule 6(c), a written motion and notice of a hearing must be served at least 14 days prior to the hearing, unless (i) the motion can be heard ex parte, (ii) the Rules provide for it, or (iii) the court orders otherwise. An opposing affidavit must be served at least seven days before the hearing, unless otherwise ordered.

Modification under the Statute of Frauds

Under UCC § 2-209(3), the requirements of the Statute of Frauds must be satisfied if the contract as modified is within its provisions. Any of the above exceptions would apply, though, to take a modification out of the Statute of Frauds. The UCC would also enforce a provision in a contract for the sale of goods that required a modification to be in writing. Thus, even if the contract was for a sale of goods valued at less than $500 or involved one of the exceptions discussed above, if the contract specifically provided that any modification be in writing, then the UCC would enforce that requirement. See UCC § 2-209(2). Note that under a common-law contract, a provision requiring a modification to be in writing even though the modification would not otherwise fall within the Statute of Frauds would not be enforceable.

Mandamus Review

Under a writ of mandamus, an appellate court can immediately review an order of a lower court that is an abuse of judicial authority. In addition to the existence of an error of law, the petitioner must establish that there is no other adequate means to obtain the desired relief and the right to such relief is clear and indisputable. Compare Kerr v. U.S. Dist. Court, 426 U.S. 394 (1976) (mandamus inappropriate to vacate lower court's discovery orders) with Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962) (mandamus appropriate when trial court denied right to jury trial on legal issue).

Sanctions in general

Under certain circumstances, after notice and a reasonable opportunity to respond, the court may, in its discretion, impose sanctions on attorneys, law firms, and parties for violations of Rule 11. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. Pursuant to Rule 11(c)(4), sanctions "must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated."

Lapse and anti-lapse of real property

Under common law, a devise of real property can also fail (lapse) if the beneficiary under a will dies before the testator and no alternate beneficiary is named. When the testator indicates a clear intent that the devise survive the death of the beneficiary, the devise will not fail. In addition, all jurisdictions have anti-lapse statutes, which prevent a gift from lapsing if the gift is made to parties specified by the statute (usually immediate relatives of the testator) and they leave issue who survive the testator. In most jurisdictions, the anti-lapse statute is limited to grandparents or a descendant of a grandparent of the testator (e.g., aunts, uncles, parents, siblings, children.) A lapsed gift becomes part of the residuary estate. When a devise is made to a class (e.g., "my children") and one member of the class dies before the testator, only the surviving class members take the property. However, if an anti-lapse statute applies because the class members were related to the testator, then the descendants of the predeceased class member also share in the devise. Most states apply the anti-lapse rule first, before applying the class gift rule.

Common Law Breach of Contract

Under common law, a material breach of contract (i.e., when the nonbreaching party does not receive the substantial benefit of its bargain) allows the nonbreaching party to withhold any promised performance and to pursue remedies for the breach, including damages. If the breach is minor (i.e., the breaching party has substantially performed), then the nonbreaching party is entitled to any remedies that would apply to the nonmaterial breach. If a minor breach is accompanied by an anticipatory repudiation, then the nonbreaching party may treat the breach as a material breach. The party who commits a material breach of his contract obligations cannot sue for contract damages but would ordinarily be entitled to the fair value of any benefit conferred on the nonbreaching party.

Trespassers and Fixtures

Under common law, a trespasser (such as a holdover tenant) is prohibited from removing a fixture attached to the land. Many jurisdictions now allow a trespasser to remove a fixture that was attached in good faith or at least to recover the value added to the property by the improvement.

Contract Essential Terms under Common Law

Under common law, all essential terms (i.e., the parties, subject matter, price, and quantity) must be covered in the agreement.

Easements by Estoppel

Under common law, good-faith, reasonable, detrimental reliance on permission by a servient estate holder may create an easement by estoppel. Restatement (Third) of Property: Servitudes, §§ 2.9, 2.10.

Landlord Tort Liabilities

Under common law, the landlord is responsible for injuries occurring only in common and public areas or in non-common areas under the landlord's control, or those occurring as a result of a hidden defect or faulty repair completed by the landlord or the landlord's agent. The modern trend is to hold landlords to a general duty of reasonable care. This means that a landlord may be liable for (1) existing defects prior to the tenant's occupation of the premises, (2) failure to make repairs required by a housing code, and (3) at times, the criminal activity of third persons who injure tenants.

Strict Products Liability

Under strict liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm to persons or property caused by such product. To recover, the plaintiff must plead and prove that: (1) The product was defective (in manufacture, design, or failure to warn); (2) The defect existed at the time the product left the defendant's control; and (3) The defect caused the plaintiff's injuries when used in an intended or reasonably foreseeable way.

Negligence - Attractive Nuisance

Under the "attractive nuisance" doctrine, a land possessor may be liable for injuries to children trespassing on the land if: (1) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass; (2) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children; (3) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition; (4) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and (5) The land possessor fails to exercise reasonable care to protect children from the harm.

Estoppel by Deed

Under the "estoppel by deed" doctrine, a grantor who conveys an interest to land by warranty deed before actually owning it is estopped from later denying the effectiveness of her deed. Consequently, when the grantor does acquire ownership of the land, the after-acquired title is transferred automatically to the prior grantee. However, under the majority rule, a subsequent purchaser from the same grantor who takes without notice can obtain good title—despite the doctrine of estoppel by deed—in a notice or race-notice jurisdiction. The purchaser is generally required to search the grantee index for a grantor's name only as far back as the date on which the grantor's name appears as a grantee (i.e., the date on which the grantor acquired the property). That date is the earliest date that a grantor's name must be searched on the grantor index for a conveyance by the grantor. The recording of a transfer made by the grantor before that date is not treated as giving the purchaser constructive notice of the transfer.

Strict Product Liability - Failure to Warn in Prescription Drugs

Under the "learned-intermediary" rule, the manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug. Restatement (Third) of Torts: Products Liability § 6 (1998). There are several exceptions, including, most importantly: (1) If the manufacturer is aware that the drug will be dispensed or administered without the personal intervention or evaluation of a healthcare provider, such as when a vaccine is administered through a mass inoculation; and (2) As a result of a federal statute, in the case of birth control pills.

Financing Statement "safe harbor"

Under the "safe harbor" rule, adopted by only a few jurisdictions, the financing statement may include the debtor's "individual name" (which the UCC does not define), the name on the debtor's driver's license, or the debtor's surname and first personal name.

Negligence - Proximate Cause and Damages

Under the "thin-skull" or "eggshell-skull" rule, the extent of the damages need never be foreseeable. The defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Timing of Federal Civil Appeal

Under the Federal Rules of Appellate Procedure, the notice of appeal required in a civil case must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

Federal Government Tort Liability

Under the Federal Tort Claims Act (FTCA), the U.S. government waives immunity in tort actions, with the following exceptions: (1) Certain enumerated torts (assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights), although intentional torts committed by law-enforcement officers are not excepted; (2) Discretionary functions (i.e., planning or decision making, as opposed to operational acts); (3) Assertion of the government's immunity by a government contractor in a products-liability case if the contractor conformed to government specifications and warned the government of any known dangers in the product; and (4) Certain traditional governmental activities (i.e., postal, tax collection or property seizure, admiralty, quarantine, money supply, and military activity). When the U.S. government waives its sovereign immunity under the FTCA, it is liable in the same manner and to the same extent that a private person under the same circumstances would be liable, but it is not liable for punitive damages.

Foreign Sovereign Immunities Act

Under the Foreign Sovereign Immunities Act (FSIA), a suit may not be brought in federal or state court against a foreign state, including a political subdivision or agency or instrumentality of a foreign state, unless an exception applies. Among the exceptions are engaging in a commercial activity, committing a tort in the United States, or seizing property in violation of international law. § 1602-1611.

Rule Against Perpetuities

Under the Rule Against Perpetuities ("Rule"), specific future interests are valid only if they must vest or fail by the end of a life in being plus 21 years.

Contract Essential Terms under the UCC

Under the UCC, a contract is formed if both parties intend to contract and there is a reasonably certain basis for giving a remedy. The only essential term is quantity, and as long as the parties intend to create a contract, the UCC "fills the gap" if other terms are missing, such as the time or place for delivery, or even the price for the goods. Requirements or output contracts satisfy UCC contract formation requirements even without naming specific quantities because the UCC implies good faith as a contract term.

Revocation under UCC

Under the UCC, a person receives notice when: (i) it comes to that person's attention or (ii) it is duly delivered in a reasonable form at the place of business or where held out as the place for receipt of such communications. Receipt by an organization occurs at the time it is brought to the attention of the individual conducting the transaction or at the time it would have been brought to that individual's attention were due diligence exercised by the organization. UCC§1-202.

Installment Contract Tender with Multiple Shipments under UCC

Under the UCC, an installment contract is defined as one in which the goods are to be delivered in multiple shipments, and each shipment is to be separately accepted by the buyer. Parties cannot vary or contract out of this definition under the code. Payment by the buyer is due upon each delivery, unless the price cannot be apportioned. UCC § 2-612.

Firm Offer

Under the UCC, an offer to buy or sell goods is irrevocable if: (1) The offeror is a merchant; (2) There is an assurance that the offer is to remain open; and (3) The assurance is contained in a signed writing from the offeror. No consideration by the offeree is needed to keep the offer open under the UCC firm offer rule. UCC § 2-205.

Nonconforming Tender Remedy under UCC

Under the UCC, if either the tender or the goods is nonconforming, then the buyer has the right to accept or reject all of the goods. When the goods are sold in commercial units, the buyer can accept one or more commercial unit(s) and reject the rest. UCC § 2-601. The buyer has the right to inspect the goods before deciding whether to accept or reject. Payment does not constitute acceptance if there is no right of inspection before payment (e.g., C.O.D., C.I.F., or C & F contracts). UCC§2-513.

Perfect Tender under the UCC

Under the UCC, the basic obligations of a seller are to transfer ownership of the goods to the buyer and to tender goods conforming to the warranty obligations. The UCC requires "perfect tender," and substantial performance will not suffice except for installment contracts or when the parties agree that it applies. The buyer has a right to inspect the goods, and once he accepts them, he has an obligation to pay. If a buyer rejects goods as nonconforming and time still remains to perform under a contract, the seller has a right to cure and tender conforming goods.

Buyer's Acceptance Under UCC

Under the UCC, the buyer accepts goods by: (1) Expressly stating acceptance; (2) Using the goods; or (3) Failing to reject the goods. UCC § 2-606.

Breach of Contract Under UCC

Under the UCC, the seller generally must strictly perform all obligations under the contract or be in breach. The doctrine of material breach applies only in the context of installment contracts or when the parties so provide in their contract.

Four Corners Rule

Under the common law, a court was permitted to look only to the writing itself (within the "four corners" of the document) for evidence of intent. If the written contract appeared to be detailed, then a court would likely conclude that it was totally integrated. A merger clause is evidence of complete integration, and it usually states: "This contract is the final and complete expression of the parties' agreement and supersedes all prior contracts, agreements, understandings, negotiations, assurances, guarantees, or statements."

Negligence - Common Carriers

Under the common law, a majority of jurisdictions held both common carriers (e.g., planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for "slight negligence." A majority of courts continue to hold common carriers to this higher standard. However, most courts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence. Note, however, that the Third Restatement approach is slightly different: common carriers and innkeepers are treated alike and must exercise reasonable care toward their passengers and guests. Although generally there is no affirmative duty to act, common carriers and innkeepers have a duty to act based upon the special relationship they have with their customers. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 (2010).

Landlord's Duty to Repair

Under the common law, there was no implied duty on the part of the landlord to repair leased premises. However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. Failure to make these repairs may constitute a constructive eviction or violate the implied warranty of habitability. In contrast, courts are reluctant to imply a landlord's duty to repair in the duty to repair in commercial leases because the implied warranty of habitability generally will not apply in commercial leases. Therefore, absent some statutory or contractual obligation, a landlord only has a duty to make a repair if (i) the repair is so substantial that it would not ordinarily fall within the tenant's common law repair duty, or (ii) the value of the repair would primarily inure to the landlord's reversionary interest. See, e.g., Brown v. Green, 884 P.2d 55 (Cal. 1994).

Exoneration of liens on real property

Under the common-law exoneration of liens doctrine, if a testator makes a specific devise of real property that is subject to an encumbrance, such as a mortgage or a lien, then the devisee is entitled to have the land "exonerated" by payment of the encumbrance from the remaining assets in the testator's estate. Most states have abolished this doctrine. In such states, the property passes subject to the encumbrance unless the will specifically requires payment of the encumbrance.

Adverse Possession generally

Under the doctrine of adverse possession, ownership of real property is transferred to a person who exercises exclusive physical possession of that property for a certain amount of time. Title acquired by adverse possession is as good as title transferred by a prior record owner. For possession to ripen into title, possession must be continuous, actual, open and notorious, hostile, and exclusive. Government-owned land cannot be adversely possessed.

Doctrine of Divisible Divorce

Under the doctrine of divisible divorce, also known as ex parte divorce, a court may have sufficient jurisdiction to grant a divorce but lack such jurisdiction with respect to other divorce-related matters, such as property division, alimony, and child support. A court with subject-matter jurisdiction over the divorce action as well as personal jurisdiction over one spouse can grant a divorce, but it cannot determine property division, alimony, or child-support issues without personal jurisdiction over the other spouse. If a court makes such a determination, the defendant can challenge the court's orders due to the court's lack of in personam jurisdiction over the defendant. Estin v. Estin, 334 U.S. 541 (1948); Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957).

Equitable Conversion

Under the doctrine of equitable conversion, although the seller retains legal title to real property during the pendency of the sales contract, equitable title passes to the buyer upon entering the contract. The seller effectively holds the property in trust for the buyer, and he has a duty to keep up the property. However, as the holder of legal title, the seller has the right to possess the property. Equitable conversion does not apply if the contract is not specifically enforceable.

Joint and Several Liability generally

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. See Restatement (Third) of Torts: Apportionment of Liability § A18. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff's entire recovery does not exceed the amount of the judgment.

Merger in Real Estate Contracts

Under the doctrine of merger, obligations contained in the contract of sale, such as the seller's duty to deliver marketable title, are merged into the deed and cannot thereafter be enforced unless the deed contains the obligation. However, this doctrine generally is not applicable to obligations that are collateral to and independent of the conveyance itself, such as the obligation of the buyer to perform some act on the property after acquisition.

Merger and Mortgage Discharge

Under the doctrine of merger, when a mortgagee's interest in real property and the interest in the same property retained by the mortgagor are acquired by the same person, courts treat the mortgage as having merged into a fee ownership of the property. However, the Restatement contends that this doctrine generally should be limited to ownership of two consecutive estates in land by the same person and should not be applied to mortgages. Restatement (Third) of Property: Mortgages § 8.5.

Part Performance Exception to the Statute of Frauds in a Land Sale

Under the doctrine of part performance, either party may seek specific performance when the acts of performance constitute persuasive evidence of the existence of a contract. Among the acts that may constitute such evidence are: (1) Payment of all or part of the purchase price; (2) Possession by the purchaser; or (3) Substantial improvement of the property by the purchaser. Most jurisdictions require at least two of the above three acts to establish sufficient part performance.

Trespass to Land - Public Necessity

Under the doctrine of public necessity, private property may be intruded upon or destroyed when necessary to protect a large number of people from public calamities, such as the spread of a fire, the spread of a disease, or the advance of a hostile military force. The privilege is absolute. As long as the defendant acts reasonably, he is not liable for any damage to the property. He is not liable even if the original entry was not necessary, as long as he reasonably believed that the necessity existed. The privilege lasts only as long as the emergency continues. The privilege is available to private citizens or public officials, should the plaintiff seek to hold a public official personally liable.

Res Ipsa Loquitur generally

Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant's negligent conduct in the absence of direct evidence of such negligence. Res ipsa is circumstantial evidence of negligence that does not change the standard of care.

Respondeat Superior

Under the doctrine of respondeat superior, a principal may be vicariously liable for a tort committed by an agent acting within the scope of his employment. The principal is liable despite the absence of tortious conduct by the principal. This is also known as "derivative liability." If the agent is not liable, then the principal cannot be vicariously liable. A principal is vicariously liable to a third party harmed by the agent's conduct when: (1) The agent is a servant (often referred to as an "employee"); and (2) The agent commits a tort while acting within the scope of employment.

Retaliatory Eviction Doctrine

Under the doctrine of retaliatory eviction, a landlord may not evict a residential tenant for failure to pay rent as retaliation for the tenant's reporting a housing code violation to the appropriate authorities. This doctrine also prevents a landlord from retaliating against a residential tenant by refusing to renew a periodic tenancy.

Slander Per Se

Under the doctrine of slander per se, a plaintiff alleging slander need not plead and prove special damages if the statement defaming her fits into one of four categories. To qualify as slander per se, the defamatory statement must accuse the plaintiff of one of the following. i) Committing a crime. In many jurisdictions, the crime must be one involving moral turpitude or one that subjects the criminal to imprisonment. ii) Conduct reflecting on the plaintiff's lack of fitness to conduct his business, trade, or profession. A general disparaging statement (e.g., the plaintiff "is a drunk") must be particularly harmful to one engaged the plaintiff's business, trade, or profession. iii) Having a loathsome disease. Traditionally, loathsome diseases included illnesses such as leprosy or a sexually transmitted disease. iv) Sexual misconduct. In modern times, examples of cases falling within this subcategory, as well as the previous one, are very rare. A few courts have held that trading sex for drugs constitutes sexual misconduct.

Insurance and Risk of Loss

Unless the contract requires otherwise, the seller does not have a duty to carry casualty insurance. Because the buyer has an equitable interest in the property, the buyer may obtain such insurance. When the risk of loss is on the buyer and the seller has casualty insurance, the seller is generally required to give the buyer credit against the purchase price in the amount of the insurance proceeds when a casualty occurs.

Completeness Rule

Under the rule of completeness, when a party introduces part of a writing or recorded statement, an adverse party may compel the introduction of an omitted portion of the writing or statement if, in fairness, it should be considered at the same time, such as when the omitted portion explains or clarifies the admitted portion. This rule also applies to a separate writing or recorded statement that relates to the introduced writing or recorded statement, such as the original letter when the reply letter has been introduced. Fed. R. Evid. 106. The rule of completeness does not require the admission of irrelevant portions of a statement. United States v. Kopp, 562 F.3d 141 (2d Cir. 2009).

Federal Officials Liability

Under the so-called "Westfall Act," 28 U.S.C. § 2679(b)(1), the remedy against the United States under the FTCA for torts committed by federal employees precludes any personal liability on the part of a federal employee under state tort law.

Collateral-Order doctrine

Under the so-called collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it "1) conclusively determines the disputed question, 2) resolves an important issue that is completely separate from the merits of the action , and 3) is effectively unreviewable on appeal from a final judgment." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 105 (2009) (holding that a disclosure order whose enforcement would allegedly violate attorney-client privilege did not qualify for review under the collateral-order doctrine).

Negligence - Collateral-Source Rule

Under the traditional rule, benefits or payments provided to the plaintiff from outside sources (such as medical insurance) are not credited against the liability of any tortfeasor, nor is evidence of such payments admissible at trial.

Res Ispa Loquitur Traditional Approach

Under the traditional standard for res ipsa loquitur, still used in many jurisdictions, the plaintiff must prove that: (1) The accident was of a kind that ordinarily does not occur in the absence of negligence; (2) It was caused by an agent or instrumentality within the exclusive control of the defendant; and (3) It was not due to any action on the part of the plaintiff.

Well-Pleaded Complaint Rule and Defenses

Under the well-pleaded complaint rule, the determination of jurisdiction must be made by considering only the necessary elements of the plaintiff's cause of action and not potential defenses. It is not sufficient to establish jurisdiction that a plaintiff alleges some anticipated federal law defense. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908). The federal question must appear on the face of the complaint. Thus, an action for declaratory relief, which by its nature anticipates future action or infringement of rights, cannot be brought under federal question jurisdiction unless it provides relief that is not available under state law. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950).

Reasonably Prudent Person - Mental Characteristics

Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. The defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the defendant is a child. In other words, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge. Most courts hold that if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Liability Insurers and Diversity Jurisdiction

Under § 1332(c), a special rule applies when a plaintiff allegedly injured by an insured party brings a direct action against the liability insurer. To avoid automatic federal subject matter jurisdiction in cases in which the liability insurer is incorporated or has its principal place of business in a different state from that where the plaintiff is a citizen, § 1332(c) makes the insurer a citizen of the state or foreign country in which its insured is a citizen, in addition to the other states or foreign countries where it has citizenship.

Supplemental Jurisdiction to Precluded Claims in Diversity

Under § 1367(b), in actions in which the original jurisdiction of the federal court is based solely on diversity jurisdiction, supplemental jurisdiction is precluded for: i) Claims by existing plaintiffs (but not defendants) against persons made parties under one of the following Federal Rules of Civil Procedure: Rule 14 (impleader), Rule 19 (compulsory joinder), Rule 20 (permissive joinder), or Rule 24 (intervention); ii) Claims by persons to be joined as plaintiffs pursuant to Rule 19; and iii) Claims by persons seeking to intervene as plaintiffs pursuant to Rule 24, when the exercise of supplemental jurisdiction over such claims would be inconsistent with the requirements for diversity jurisdiction under 28 U.S.C. § 1332.

Discretionary Rejection of Supplemental Jurisdiction

Under § 1367(c), a district court has discretion to decline to exercise supplemental jurisdiction over a claim that would otherwise qualify for supplemental jurisdiction in each of the following circumstances: i) The supplemental claim raises a novel or complex issue of state law; ii) The supplemental claim substantially predominates over the claims within original federal jurisdiction; iii) All of the claims within the court's original jurisdiction have been dismissed; or iv) In exceptional circumstances, if there are other compelling reasons for declining jurisdiction.

Time to respond to an amended pleading

Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading. Rule 15(a)(3).

Landlord Assignments

Unless the lease provides otherwise, a landlord may assign his rights under the lease, usually as part of a transfer of the landlord's ownership interest in the property, to a third party without the tenant's consent. The tenant owes rent, as well as any other burden imposed by a covenant in the lease that runs with the land, to the assignee landlord. Likewise, the assignee landlord is obligated to the tenant to perform any burden imposed by a covenant that runs with the land. The assignor landlord remains liable to the tenant for all covenants in the lease.

Multiparty, Multiforum Trial Jurisdiction Act of 2002

Under § 1369(a), for a civil action that "arises from a single accident, where at least 75 natural persons have died in the accident at a discrete location," only one plaintiff need be of diverse citizenship from one defendant for a federal court to have diversity jurisdiction, if: i) A defendant resides in a state and a substantial part of the accident took place in another state or other location, regardless of whether that defendant is also a resident of the state where a substantial part of the accident took place; ii) Any two defendants reside in different states, regardless of whether such defendants are also residents of the same state or states; or iii) Substantial parts of the accident took place in different states. Even if those requirements are met, however, under § 1369(b), the district court must abstain from hearing the case if: i) The substantial majority of all plaintiffs are citizens of a single state of which the primary defendants are also citizens; and ii) The claims asserted will be governed primarily by the laws of that state. The Act also provides: i) That anyone involved in the accident is permitted to intervene as a plaintiff; and ii) Nationwide service of process.

Discretion to remand when proposed joinder would destroy diversity jurisdiction

Under § 1447(e), if, after removal, the plaintiff seeks to join a defendant who would destroy the federal court's diversity jurisdiction, then the court has discretion to deny the joinder and proceed with the action in federal court, or to permit the joinder and remand the action to state court.

Time for making motion for summary judgment

Unless a different time is set by local rule, under Rule 56(b), a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

Fourteenth Amendment Due Process Challenge to Zoning

Unless a fundamental right has been violated, a Fourteenth Amendment substantive due process challenge to a zoning ordinance need only satisfy the rational-basis test (i.e., a rational relationship to a legitimate governmental interest). The right to housing is not a fundamental right. Belle Terre v. Boraas, 416 U.S. 1, 7 (1974) (a zoning ordinance that restricted land use to single-family dwellings and defined "family" as excluding more than two unrelated individuals was upheld); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (expedited eviction procedures for a tenant's failure to pay rent were subject to the rational-basis test). However, the right of family members to live together is a fundamental right. Moore v. E. Cleveland, 431 U.S. 494 (1977) (an ordinance that prevented second-generation family members such as grandparents and grandchildren from living together was struck down).

Appeal due to jury instruction

Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court's failure to give an instruction timely requested by a party, the party generally cannot raise the matter on appeal. A plain error with regard to the jury instructions that affects substantial rights may nevertheless be addressed by an appellate court. Rule 51(d).

Developer of a Common-Interest Ownership Community

Unless exempt by statute, the developer of a common-interest ownership community has a duty to create an association to manage the common property and enforce the servitudes. Unless fixed by statute, which is often the case, after a reasonable time, the developer has a duty to transfer the common property to the association and to turn over control of the association to the members other than the developer. Factors such as the percentage of units or lots that have been sold, the interval since the first unit or lot was sold, and the level of the developer's construction and marketing activities are relevant in determining a reasonable time. Restatement (Third) of Property: Servitudes § 6.19(1, 2). Once a developer has relinquished control, the association has the power to terminate without penalty any contract or lease between the association and the developer or an affiliate of the developer. In addition, the association can terminate any contract or agreement for management or maintenance services, any lease of recreational or parking facilities, or any other contract or lease that was not bona fide or was unconscionable to the members other than the developer at the time it was entered into. Restatement (Third) of Property: Servitudes § 6.19(3). Federal law also provides for the cancellation of any contract for a period of more than three years for the operation, maintenance, or management of the property that is between the unit owners or association and the developer (or an affiliate) that was entered into while the developer or affiliate had control of the association. The unit owners generally have a two-year window after the association gains control in which to vote to terminate the contract, and they must do so by a two-thirds vote of all unit owners other than the developer or affiliate. The federal law applies only to condominiums and cooperatives that have been created by conversion of existing residential rental property. 15 U.S.C. § 3607. The developer may not use the power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed. Restatement (Third) of Property: Servitudes § 6.21.

When Buyer Is Not Entitled to Inspect

Unless otherwise agreed, the buyer is not entitled to inspect the goods before payment of the price if the contract (1) provides for delivery "C.O.D." or (2) is on other terms that, under the applicable course of performance, course of dealing, or trade usage are interpreted to preclude inspection before payment. Similarly, the buyer is not entitled to inspect the goods before payment, unless otherwise agreed, if the contract provides for payment against documents of title, except when such payment is due only after the goods are to become available for inspection.

Timing of Marketable Title

Unless otherwise agreed, the seller is not required to deliver marketable title until the closing. In the case of an installment land contract, marketable title is not required to be given until delivery occurs.

Involuntary dismissal and res judicata

Unless otherwise provided by the order of dismissal, an involuntary dismissal on non-jurisdictional grounds will constitute an adjudication on the merits. Rule 41(b). While such an involuntary dismissal will bar refiling of the claim in the same federal court, it does not preclude refiling of the claim in state court. Semtek, supra.

Time Limit for Service

Unless service is made in a foreign country, the plaintiff must serve the summons and complaint within 90 days after filing the complaint. If, however, the plaintiff shows "good cause" why service was not timely made, then the court must extend the time for service for an appropriate period. If no such showing is made, then the court, on motion or on its own after notice to the plaintiff, must dismiss the action without prejudice against that defendant or order that service be made within a specified time. Rule 4(m).

Mortgagor's Liability in Transfer by Mortgagor

Unless the mortgagee-lender agrees to release the mortgagor-borrower from liability for the loan, the mortgagor-borrower remains personally liable on the loan obligation after the transfer of the mortgaged property. If the transferee assumes the mortgage obligation, then the mortgagor-borrower becomes secondarily liable as a surety, and the transferee becomes primarily liable on the mortgage loan.

Risk of Loss Default Provision

Unless the parties agree otherwise, in other cases (e.g., the buyer picks up the goods from the seller or the seller delivers the goods to the buyer), risk of loss passes to the buyer upon the taking of physical possession if the seller is a merchant; otherwise, risk passes on tender of delivery.UCC§2-509(3).

Risk of Loss generally

Unless the parties otherwise agree, if goods that have not been identified are damaged or destroyed without the fault of either party to the contract, then the risk of loss is generally on the seller until the seller satisfies the contractual delivery obligations. Upon the happening of that event, the risk of loss shifts to the buyer. UCC § 2-509.

Agent's Duty to Not Be Adversarial

Unless the principal and agent have agreed otherwise, the agent has a duty not to deal with the principal as an adverse party in any transaction connected with the agency without the principal's knowledge. For example, an agent cannot, without the principal's knowledge, purchase goods from the principal if the principal has retained the agent to sell those goods.

Concurrent Estate Possession

Unless there is an agreement to the contrary, each co-tenant has the right to possess all of the property, and one co-tenant may not bind another co-tenant to a boundary line agreement. A co-tenant is generally not required to pay rent to the other co-tenants for the value of her own use of the property, even when the other co-tenants do not make use of the property. Similarly, a co-tenant is generally not required to share profits earned from the use of the property, such as from a business conducted on the property. As a consequence of each tenant's right to possess the entire property, a co-tenant's exclusive use of the property does not, by itself, give rise to adverse possession of the interest of another co-tenant.

Cooperatives

Unlike a condominium, a cooperative typically consists of land and one or more buildings owned by a corporation that leases individual residential units (e.g., apartments) to its shareholders. A resident is a tenant who also owns one or more shares of stock in the corporation, and is prohibited from transferring her interest in the corporation separately from the lease. Unlike a condominium, in which each owner is responsible for his own mortgage, a cooperative has a blanket mortgage. This mortgage generally has priority over occupancy leases. A default on the mortgage can result in foreclosure proceedings on the property, which can in turn terminate all leases. Each shareholder-tenant is assessed a fee that is paid to the association that represents a share of the taxes and maintenance expenses of the cooperative.

Quitclaim Deed

Unlike a warranty deed, a quitclaim deed promises no covenants of title. A common form of quitclaim deed is the tax deed, which is used by government authorities when selling properties seized for nonpayment of taxes. The grantee in a quitclaim deed (or a grant deed or warranty deed) receives no better title than what the grantor possessed. Recording a quitclaim deed may give the grantee priority over an earlier unrecorded general warranty deed.

Non-party Preclusion

Unlike claim preclusion, issue preclusion does not require strict mutuality of parties, but only that the party against whom the issue is to be precluded (or one in privity with that party) must have been a party to the original action. Thus, "offensive" use of collateral estoppel is permitted. Trial courts have "broad discretion" to determine whether offensive collateral estoppel should be applied. If a plaintiff could easily have joined in the earlier action or offensive estoppel is found to be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel. Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). There are six exceptions to the general rule against non-party preclusion: i) A party who agreed to be bound by a judgment; ii) Certain types of "substantial legal relationship" between the party and the non-party, such as a bailor-bailee relationship; iii) A non-party who was "adequately represented by someone with the same interests," as is found in class-action suits or suits by trustees; iv) A non-party who "assumes control" over the case; v) A party who attempts to re-litigate by using a proxy; or vi) Special statutory schemes that prohibit successive litigation and are consistent with due process. Taylor v. Sturgell, 553 U.S. 880 (2008). The court has also recognized that there is a very narrow exception known as "virtual representation," which requires either special procedures to ensure that non-party interests are protected or notice and an understanding that "the first suit was brought in a representative capacity." Richards v. Jefferson County, 517U.S.793(1996).

Covenants Running with the Land

Unlike easements, profits, and licenses, which grant affirmative rights to use real property, real covenants and equitable servitudes restrict the right to use real property or impose obligations on the owners of real property. When damages are sought to enforce the covenant, the covenant is called a "real covenant." When an injunction is sought to enforce a covenant, it is called an "equitable servitude."

Agricultural Liens under Article 9

Unlike other statutory and common-law liens, an agricultural lien is subject to Article 9. Included within the definition of an "agricultural lien" is an interest in farm products (e.g., crops, livestock) that secures payment or performance of an obligation for either (i) goods or services furnished with respect to the debtor's farming operation (e.g., livestock feed sold to a cattle rancher) or (ii) rent on real property leased by a debtor in connection with a farming operation. UCC §§ 9-102(a)(5), 9-109(a)(2).

Garage Sale Exception - Value

Unlike the BOCB exception, the "garage sale" exception merely requires a buyer to give value, rather than new value. Consequently, acquisition of the consumer goods in total or partial satisfaction of a money debt constitutes giving value. UCC § 9-320(b).

Federal statutory Interpleader and venue

Venue is proper in any federal judicial district where one of the claimants resides. § 1397.

Contract Modification under the UCC

Unlike under the common law, under Article 2, no consideration is necessary to modify a contract; however, good faith is required. Thus, if one party is attempting to extort a modification, it will be ineffective under the UCC. Good faith requires honesty in fact and fair dealing in accordance with reasonable commercial standards. UCC § 2-103. The definition of "good faith" in Revised Article 1, tested on the MBE and adopted in a majority of states, no longer limits the fair dealing prong of the rule to merchants. The same definition of good faith applies to all parties, both merchants and nonmerchants alike.

Involuntary Termination of Parental Rights

Unlike with consensual termination of parental rights, only a court can involuntarily terminate one's constitutional right to parent a child. The involuntary termination of parental rights typically occurs as part of an abuse, neglect, or dependency case after the state has intervened and made attempts to rectify the situation. Also, if consent is unreasonably withheld, then the court will waive such consent. Each jurisdiction provides the statutory grounds and requirements for termination of parental rights. They can include abandonment, incapacity, abuse of a sibling, termination of parental rights over a sibling, and abuse and neglect of the child over a period of time. Additionally, under the Adoption and Safe Families Act, a state can move for termination of parental rights when the child has been placed outside of the home and not with a relative for 15 of the past 22 months, provided certain reunification attempts have been made by the state. Because the termination of parental rights has constitutional implications, it is considered an extreme remedy. The standard for determining whether termination is appropriate is clear and convincing evidence.

Consent or Waiver of Personal Jurisdiction

Unlike with subject matter jurisdiction, a party may consent to personal jurisdiction. The consent may be express, implied, or made by a voluntary appearance. An objection to a court's exercise of jurisdiction over persons and things may also be waived by a party. Under Rule 12(b), the defenses of lack of personal jurisdiction over the person, insufficiency of process, and insufficiency of service of process must be asserted in a responsive pleading or by motion before a responsive pleading is submitted. A failure to object in accordance with Rule 12 waives the objection. Rule12(h).

Default on Account

Upon default, a secured party may notify an account debtor (i.e., a person obligated on an account, chattel paper or general intangible, but not a person obligated on a negotiable instrument) to make payment to the secured party. In addition, the secured party may exercise any rights of the debtor with respect to the obligation of the account debtor. In a commercially reasonable manner, the secured party may collect from the account debtor, and, if the account debtor does not pay, the secured party may enforce the obligation of the account debtor. UCC § 9-607.

Effect of Assignment on Debtor

Upon receipt of notification, the account debtor may discharge her obligation only by paying the assignee; a payment made to the assignor does not discharge the account debtor's obligation. Against the assignee, the account debtor may raise, unless waived, claims and defenses that arise from the transaction with the assignor who created the account, even those that accrue after the account debtor is notified of the assignment. The rights of an assignee are subject to all terms of the agreement between the account debtor and the assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract. Other defenses and claims that the account debtor has against the assignor may be raised only if they have accrued prior to the account debtor's receipt of notification of the assignment. Unless the account debtor incurred the debt as a consumer, account debtor's claims and defenses may only serve to offset the amount that the account debtor owes. UCC §§ 9-404; 9-406.

Bargained-for Exchange

Valuable consideration is evidenced by a bargained-for change in the legal position between the parties. Most courts conclude that consideration exists if there is a detriment to the promisee, irrespective of the benefit to the promisor. A minority of courts look to either a detriment or a benefit, not requiring both. The Second Restatement asks only whether there was a bargained-for exchange. Restatement (Second) of Contracts § 71.

Venue generally

Venue concerns which court among the courts having personal and subject matter jurisdiction is the proper forum for hearing the matter. For cases in federal court, the issue is determining the proper geographic district (e.g., Central District of California) in which a trial should occur. Each state has at least one federal judicial district, with a few states having as many as four. Venue requirements are statutory and are intended to ensure the parties a fair and convenient forum for litigating their dispute.

Venue in Case Brought under the Federal Tort Claims Act

Venue in a case brought under the Federal Tort Claims Act is proper either in the judicial district where the plaintiff resides or in the judicial district where the act or omission occurred. § 1402(b).

Transferability of Remainders and Executory Interests

Vested remainders are fully transferable inter vivos, devisable by will, and descendible by inheritance. Today, executory interests and contingent remainders are transferable inter vivos in most jurisdictions, although under common law they were not transferable; both are devisable and descendible. It is important to note that most states permit any transferable future interest to be reached by creditors, except for those interests held by unascertainable or unborn persons.

Vicarious Liability for torts generally

Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly liable for the injury.

Domestic Violence - Scope of Statutes

Virtually every jurisdiction requires that the perpetrator of the violence be in a relationship with the victim or be a household or family member. Jurisdictions differ, however, on the scope of coverage. Most states include spouses, former spouses, children, unmarried parents of a common child, and household or family members. Some jurisdictions also cover dating relationships. See, e.g., N.J.S.A. 2C:25-19d. These statutes tend to focus on a continuum of behavior, but depending on the level of violence, a single episode may qualify for court protection.

Negligence - Bailee

When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor's property. Slight negligence on the bailee's part will result in liability for any injuries to the property from failure to properly care for or use it. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

Seller's Remedy for Accepted Goods Under UCC

When a buyer has accepted the goods and fails to pay the price when it becomes due, the seller may sue for the price. UCC § 2-709(1)(a).

Article Security Interests and priority

When a buyer or seller has a security interest arising under Article 2, the interest has priority over a conflicting security interest created by the debtor under Article 9, as long as the buyer or seller retains possession of the goods. UCC § 9-110. Note that an Article 2 security interest is perfected without filing. UCC § 9-110(2).

Concurrent Estate Ouster

When a co-tenant refuses to allow another co-tenant access to the property, the ousted co-tenant may bring a court action for ouster (e.g., seek an injunction) to gain access to the property and to recover the value of the use of the property for the time during which the co-tenant was denied access to the property.

Limitations on Injunctions

When a conflict of jurisdiction occurs between state and federal courts, the federal court cannot use an injunction to prohibit pending state-court proceedings unless expressly authorized by statute. Neither can a federal court grant an injunction against the collection of state taxes. In criminal law, state criminal proceedings that have not yet been instituted cannot be enjoined unless to do so would prevent irreparable harm, and appellate remedies would be inadequate to provide relief.

Buyer's Obligations with Seller's Tender

When a conforming tender is made, the buyer is obligated to accept and pay the price under the contract. UCC § 2-507. Rejection amounts to breach of contract. An agreement that is otherwise sufficiently definite will not be made invalid merely because it omits details regarding the performance to be specified by one of the parties. The UCC implies an obligation of good faith within the parameter of "commercial reasonableness." UCC § 2-311(1). When a contract fails to specify the assortment of goods, the UCC imposes a duty on the buyer to specify, whereas arrangements relating to shipment are the seller's duty to specify. UCC § 2-311(2). If the buyer fails to specify the assortment of goods, then the seller can treat the failure as a breach by failure to accept the contracted-for goods only if the buyer's failure materially impacts the seller's performance. UCC § 2-311(3).

Transfer of the deed to an independent agent by contract

When a contract for the sale of real property calls for the seller to give the deed to an independent third party (i.e., an escrow agent) and conditions the release of the deed to the buyer on the happening of an event, typically payment of the purchase price, the escrow agent is obligated to transfer the deed to the buyer if and when the condition occurs.

FAS Contract

When a contract specifies F.A.S. (free alongside ship), the seller is obligated to deliver the goods alongside a designated vessel in a manner that comports with the ordinary course of business of the port of delivery, or at a specified dock.

Debt Discharged by Dispute

When a creditor agrees to accept a lesser amount in full satisfaction of the debt, the original debt is discharged only when there is some dispute either as to the validity of the debt or the amount of the debt, or when the payment is of a different type than called for under the original contract.

Restitutionary Recovery

When a defendant is unjustly enriched by the plaintiff, restitution generally allows the plaintiff to recover on the benefit conferred by the plaintiff upon the defendant (rather than on the harm suffered by the plaintiff). Generally, this benefit may be measured by either the reasonable value of the defendant obtaining that benefit from another source or the increase in the defendant's wealth from having received that benefit (e.g., the increase in value of property owned by the defendant). Restatement (Second) of Contracts §§ 370, 371.

"Low price" disposition to a secured party

When a disposition of the collateral is made to a secured party, a person related to the secured party, or a secondary obligor, the secured party may lack the incentive to maximize the proceeds of the disposition. If the amount of the proceeds in such a disposition is significantly below the range of proceeds that a disposition to someone other than the secured party, person related to the secured party, or a secondary obligor would have brought, then the amount of the deficiency may be adjusted to reflect the higher price that would have been realized from the other person. UCC §§9-102(63), (64); 9-615(f), incl. cmt. 6.

Supplemental Jurisdiction for Diversity Jurisdiction

When a district court has diversity jurisdiction over a claim, the common-nucleus-of-operative-facts rule also applies to determine whether the court can exercise supplemental jurisdiction over an additional claim.

Finalizing Divorce

When a divorce is initially granted, many states do not permit a divorce to be finalize the divorce until a specified period of time has elapsed. This is known as an "interlocutory" decree. During this interlocutory period, neither spouse can remarry.

Government Officials Tort Liability

When a government official is personally sued, immunity applies if she is performing discretionary functions entrusted to her by law so long as the acts are done without malice or improper purpose. There is no tort immunity for carrying out ministerial acts, such as driving while on government business. Many highly ranked government officials, such as legislators performing their legislative functions, judges performing their judicial functions, prosecutors, and some upper-echelon officials of the executive branches, are usually absolutely immune from personal liability.

Landlord's Permission to Assign or Sublet

When a lease prevents assignment or subletting without the permission of the landlord, and the lease is silent as to a standard for exercising that permission, the modern trend imposes a requirement that the landlord may withhold permission only on a commercially reasonable ground. The traditional rule is that the landlord may withhold permission at his discretion. Non-assignment and non-sublease clauses are valid but narrowly construed. A clause that prohibits assignment does not automatically also prohibit subleasing.

Prohibition on Assignment and Subletting Lease

When a lease prohibits the tenant from assignment or subletting the leasehold, the tenant may nevertheless assign or sublet the premises. However, the landlord generally can then terminate the lease for breach of one of its covenants and recover any damages.

Defenses against Annulment

When a marriage is void, the only way to defend against the annulment is to deny the existence of the impediment that voided the marriage. Removing the impediment merely makes the marriage voidable, but it will not necessarily prevent the annulment. In annulling voidable marriages, courts recognize the equitable defenses of unclean hands, laches, and estoppel.

Timing for Answer when Motion made under Rule 12

When a motion is made under Rule 12, a defendant will not have to file an answer while the motion is pending. If the court denies or postpones disposition of the motion until a trial on the merits, then the answer must be served within 14 days after notice of the court's action. Rule 12(a)(4)(A). If the court grants a motion for a more definite statement under Rule 12(e), then the answer must be served within 14 days after service of the more definite statement.

Licensing Violation and Illegality

When a party fails to comply with a licensing or similar requirement and is prohibited from performing an act, the contract will nonetheless be enforceable if the policy grounds are economic (e.g., revenue raising) and public policy for the requirement does not outweigh the interest in enforcing the promise. Restatement (Second) of Contracts § 181.

Default and Default Judgment

When a party has failed to plead or otherwise defend an action and that failure is shown by affidavit or otherwise, the court clerk must enter the party's default. Rule55(a). Once a default is entered against a party, the plaintiff may seek a default judgment. If the relief sought is a sum certain or amount that can be made certain by computation, the default judgment can generally be entered by the court clerk on the plaintiff's request accompanied by an affidavit showing the amount due. Otherwise, the plaintiff must apply to the court for a default judgment. Rule 55(b). Defaults and default judgments, however, are considered drastic remedies and are strongly disfavored by the courts. See, e.g., Hughes v. Holland, 320 F.2d 781 (D.C. Cir. 1963).

Party's opportunity to be heard in judicial notice of fact

When a party makes a timely request, the judge must give the party an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. This right to be heard exists even if the court has taken judicial notice of a fact before notifying the party. Fed. R. Evid. 201(e).

Effect of duress on contract

When a party's agreement to enter into a contract is physically compelled by duress, such as the threat to inflict physical harm, the contract is void. In other instances when a party is induced to enter into a contract by duress, such as when the threat is a breach of the duty of good faith and fair dealing, the contract is voidable. When the duress is caused by the person who is not a party to the contract, the victim may void the contract, unless the nonvictim party to the contract gave value or materially relied on the contract while acting in good faith and without reason to know of the undue influence. Restatement (Second) of Contracts §177(3). Generally, restitution damages are available to the party induced to enter a contract under duress. Restatement (Second) of Contracts §§ 174, 175.

After-acquired Title

When a person who purports to transfer real property that he does not own subsequently becomes the owner of that property, the after?acquired title doctrine provides that title to the property automatically vests in the transferee. Most often, this doctrine is applied to the grantor of a warranty deed. A related doctrine, estoppel by deed, prevents the grantor from asserting ownership of the after-acquired property.

Implied-in-Law or Quasi Contracts

When a plaintiff confers a benefit on a defendant and the plaintiff has a reasonable expectation of compensation, allowing the defendant to retain the benefit without compensating the plaintiff would be unjust. In this case, the court can permit the plaintiff to recover the value of the benefit to prevent the unjust enrichment. Although this type of action is often characterized as based on an implied-in-law contract or a quasi-contract, quantum meruit recovery does not depend on the existence of a contract. A court may allow restitutionary recovery if: (1) The plaintiff has conferred a measurable benefit on the defendant; (2) The plaintiff acted without gratuitous intent; and (3) It would be unfair to let the defendant retain the benefit because either (a) the defendant had an opportunity to decline the benefit but knowingly accepted it, or (b) the plaintiff had a reasonable excuse for not giving the defendant such opportunity (e.g., because of an emergency).

Due Process with Zoning Variance

When a property owner seeks a permit to build in conformity with the zoning ordinance, a special-use permit, or a variance, the property owner has procedural due process rights. The owner has the rights to receive a hearing before an impartial decision maker, to present evidence to the decision maker, and to receive an explanation of the decision. Johnson v. City of Seattle, 335 P.3d 1027 (Wash. App. 2014). Typically, when a property owner is denied a permit or a variance, the owner also has the right to appeal this denial to a reviewing entity (e.g., a board of zoning appeals).

Timing of Motion to Strike

When a responsive pleading is permitted, the responding party must move to strike prior to responding to such a pleading. When no responsive pleading is permitted, the party must make a motion to strike within 21 days after service of the pleading.

Remedies Against Secured Party - Injunctive Relief

When a secured party has not proceeded in accordance with Article 9 (e.g., has failed to notify the debtor as to a disposition of the collateral), the debtor or other secured party may seek injunctive relief from a court to compel or restrain collection, enforcement, or disposition of collateral on appropriate terms and conditions. UCC § 9-625(a), incl. cmt. 2.

Default on Fixtures

When a security agreement covers fixtures, a secured party may proceed as to the fixtures in accord with the rights and remedies with respect to the real property. UCC § 9-604(b), incl. cmt. 3. When a secured party's security interest has priority over owners and individuals who encumber real property, that secured party may remove the fixture from the real property. With respect to an owner or encumbrancer who is not the debtor, the secured party is liable for the cost of repairing any physical object damaged by the removal but not for any reduction in the value of the real property due to the removal. UCC § 9-604.

Holdover Tenant generally

When a tenant continues to occupy the premises without the landlord's agreement after the original lease expires, the tenant is considered to be a "holdover tenant."

Zoning Treatment of Existing Nonconforming Property

When a zoning ordinance is enacted or modified, there are often properties within a zone that do not conform to the requirements for that zone (i.e., a nonconforming use). A zoning ordinance must generally make provision for property with an existing nonconforming use. See, Mass. Laws. ch. 40A, § 6; see Nectow v. City of Cambridge, 277 U.S. 183 (1928) (a zoning ordinance that restricted property to residential uses violated substantive due process with respect to property that, when the zoning ordinance was adopted, was under contract to be sold to a buyer who planned to use the property for nonresidential purposes). A zoning ordinance that permits an existing nonconforming use of property to continue is sometimes said to have "grandfathered" the nonconforming use.

Action Against A Seller Under Equitable Conversion

When an action is maintained against the seller for a claim that arose prior to the execution of the contract, a judgment obtained against the seller after the execution of the contract is not enforceable against the real property. Under the doctrine of equitable conversion, the seller's interest is converted by the contract into an interest in the proceeds from the sale; it is no longer an interest in the real property itself.

Respondeat Superior - Frolic

When an employee's personal errand involves a significant deviation from the path that otherwise would be taken for the purposes of performing work, the errand is a frolic. Once a frolic begins, an employee is outside the scope of his employment until he resumes performance of his assigned work.

Right to Reclaim Goods from Insolvent Buyer Under UCC

When an insolvent buyer receives goods on credit, and the seller learns that the buyer is insolvent, the seller may reclaim the goods, provided a demand is made within 10 days after the buyer's receipt of the goods. This 10-day limitation does not apply if the buyer has misrepresented solvency to the seller in writing within three months before delivery. Otherwise, the seller cannot base a right to reclaim goods on the buyer's fraudulent or innocent misrepresentation of solvency or of intent to pay. In addition, this right is subordinate to the rights of a buyer in the ordinary course or other good-faith purchaser, and, if exercised, precludes all other remedies with respect to the reclaimed goods. UCC § 2-702. Pre-delivery insolvency: As a condition for the seller to reclaim goods from a buyer, the buyer must have received the goods on credit while insolvent. If the buyer becomes insolvent after delivery, then the seller may not reclaim the goods.

Personal Jurisdiction general analysis

When analyzing a personal jurisdiction question, the focus is on (i) the contacts that the defendant has or had with the forum state and (ii) whether the assertion of jurisdiction by the court would comport with fair play and substantial justice. Personal jurisdiction will depend on the facts of each case.

Negligence - Substantial-Factor Test

When but-for causation does not work, the majority of courts substitute a "substantial-factor test." In cases in which two or more causes or acts may have contributed to a plaintiff's indivisible injury, each of which alone would have been a factual cause of that injury, the test is whether the defendant's tortious conduct was a substantial factor in causing the plaintiff's harm. Under the minority rule of the Third Restatement, each such cause or act is regarded as a factual cause of the harm. Together they are designated as "multiple sufficient causes." Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27.

Oral deposition of a corporation, partnership, association, or governmental entity

When deposing a corporation, partnership, association, or governmental entity, Rule 30(b)(6) states that the notice must describe with reasonable particularity the areas of inquiry, and it must state that the named entity has the duty to designate a representative with respect to the designated areas of inquiry. The named entity must then designate one or more officers, directors, managing agents, or other persons who consent to testify on the entity's behalf with regard to those areas.

Respondeat Superior - force is inherent

When force is inherent in the employee's work (e.g., a bouncer at a bar), the employer may be responsible for injuries the employee inflicts in the course of his work.

Risk of Loss - Goods held by a bailee

When goods that are held by a bailee are to be transferred without being moved, the risk of loss generally passes to the buyer on the buyer's receipt of a negotiable document of title covering the goods or on acknowledgment by the bailee of the buyer's right to possession of the goods. UCC§2-509(2).

Intentional Tort Defense - Emergency Situation

When immediate action is required to save the life or health of a patient who is incapable of consenting to treatment, such consent is ordinarily unnecessary. Courts generally say that consent is "implied in fact," but it probably is more accurate to say that the treatment is privileged. Even in an emergency situation, however, a competent and conscious patient's right to refuse treatment cannot be overridden.

Partial Impracticability Effect on Contract

When impracticability does not prevent a seller from delivering some of the goods, the goods actually produced must be apportioned among all of the buyers with whom the seller has contracted. The buyer, however, may refuse to accept and may cancel the contract. UCC §§ 2-615(b), 2-616.

Effects on Delegator of Delegating Contract Obligations

When obligations are delegated, the delegator is not released from liability, and recovery can be had against the delegator if the delegatee does not perform, unless the other party to the contract agrees to release that party and substitute a new one (a novation). Merely consenting to a delegation does not create a novation.

Intentional Killings and Joint Tenancy

When one co-tenant intentionally kills the other co-tenant, some states allow the felonious joint tenant to hold the property in constructive trust for the deceased joint tenant's estate. This means that the surviving joint tenant does not profit from the felony but can keep his interest in the property. Other jurisdictions have statutes that sever the joint tenancy upon a felonious killing of one joint tenant by another joint tenant.

Unilateral Mistake in Contract Formation

When only one of the parties was mistaken as to an essential element of the contract at the time the contract was formed, either party can generally enforce the contract on its terms. However, the mistaken party can void the contract if the elements for a mutual mistake exist and either: (1) The mistake would make enforcement of the contract unconscionable; or (2) The non-mistaken party caused the mistake, had a duty to disclose or failed to disclose the mistake, or knew or should have known that the other party was mistaken. For a unilateral mistake to form the basis for rescission, there must be an absence of serious prejudice to the other party. Restatement (Second) of Contracts § 154.44

Order of Performance of Conditions of a Contract

When only one party's performance of his contractual duty requires a period of time, that party must complete his performance before the other party is required to perform, unless the language or circumstances indicate otherwise. By contrast, when a party's performance can be rendered at the same time as the other party's performance, each party's performance is conditioned on the other party's performance (known as "the constructive condition of exchange"); consequently, both parties' performances are due simultaneously, unless the language or circumstances indicate otherwise. In such a case, the failure of one party to perform excuses the other party's performance. Restatement (Second) of Contracts § 234.

Substantial Performance of a Condition of a Contract

When parties expressly agree to a condition precedent (or a concurrent condition), they are generally held strictly to that condition; a party must fully comply with that condition before the other party's performance is due. With an implied or constructive condition precedent (or an implied or constructive concurrent condition), a party who substantially complies with an implied or constructive condition can trigger the obligation of the other party to perform. This is known as the doctrine of "substantial performance." The doctrine of substantial performance does not generally apply to a contract for the sale of goods.

Notation for Vehicles

When property is subject to a special statute in lieu of Article 9's rules on perfection, the statute dictates the manner of perfection. The most prominent of such property subject to separate legislation is a motor vehicle that is subject to a certificate-of-title statute. For example, if the statute requires that the security interest in a vehicle be noted on the certificate of title, then a security interest in the vehicle that has been filed is not perfected. In addition, possession of the vehicle or the certification of title is not sufficient to perfect the security interest. Also, the rule granting automatic perfection to a purchase money security interest in consumer goods does not apply when the collateral is a motor vehicle. Other property, such as civil aircraft, is subject to federal statutory rules for perfection. UCC §§ 9-309(1), 311, 313(b).

Conditional sale and repurchase of real property

When real property is sold and then leased back to the seller, usually for a long period of time with the option to repurchase the property, the transaction may constitute the creation of a security interest in the property, a disguised mortgage, rather than a sale-leaseback arrangement. Among the factors the court will take into account when determining the true character of the transaction are the equivalency of the lease payments to the fair market rental value of the property and the likelihood that the seller?lessee will exercise his right to repurchase the property at the end of the lease period.

Time and Place under Rule 9

When relevant and material, facts regarding time and place must be specified in detail.

Conflict of Laws in Property

When significant aspects of a legal action are divided between two or more states (e.g., parties who are residents of different states), the forum court must determine the law to be applied in deciding a particular issue. The decision as to which state's law should govern is determined under conflict-of-laws principles.

Buyer's Replevin under UCC

When the buyer has made at least partial payment for identified goods, the buyer can obtain the undelivered goods from the seller if: (1) The seller becomes insolvent within 10 days of receiving the first payment from the buyer; or (2) The goods were for family, personal, or household purposes, and the seller has repudiated or failed to deliver the goods as required by the contract. To obtain the goods, the buyer must tender any unpaid portion of the price to the seller. UCC § 2-502.

Class Action and venue

When the class action involves a defendant class, venue is determined on the basis of the residences of the representative parties—not the residences of all the class members.

Real Property Collateral and Financing Statements

When the collateral is related to real property, the financing statement must, in addition to the information required for all financing statements, contain: i) An indication that it covers this type of collateral; ii) An indication that it is to be filed in the real-property records; iii) A description of the real property to which the collateral relates; and iv) The name of a record owner, if the debtor does not have an interest of record in the real property. This additional information is required for (i) a fixture filing with respect to goods that are or are to become fixtures, (ii) as-extracted collateral (i.e., oil, gas or other minerals subject to a security interest that is created by a debtor having an interest in the minerals before extracted and that attaches to the minerals as extracted), and (iii) timber to be cut. UCC §§ 9-102(a)(6); 9-502(b).

Acceptance Under the UCC where one or both parties are not merchants

When the contract is for the sale of goods between nonmerchants or between a merchant and a nonmerchant, a definite and seasonable expression of acceptance or written confirmation that is sent within a reasonable time operates as an acceptance of the original offer. This is true even if it states terms that are additional to or different from the offer, unless the acceptance is made expressly conditional on the offeror's consent to the additional or different terms. The additional terms are treated as a proposal for addition to the contract that must be separately accepted by the offeror to become a part of the contract. UCC § 2-207(2).

Supplemental Jurisdiction in Federal Question

When the district court's subject matter jurisdiction for a claim is based on the existence of a federal question, additional claims against the same party can be heard by the court through the exercise of supplemental jurisdiction if the common-nucleus-of-operative-fact test is met. Similarly, a district court may have supplemental jurisdiction over claims that involve the joinder or intervention of additional parties over which the court would not otherwise have jurisdiction if the claims involving the additional parties satisfy the common-nucleus-of-operative-fact test. Such jurisdiction is also referred to as pendent-party jurisdiction. Dismissal of a federal claim on the merits does not preclude a federal court from exercising pendent jurisdiction over the state claim.

Delivery of deed by an escrow agent

When the escrow agent delivers the deed to the buyer prior to the performance of the condition, title to the property remains with the seller. This is true even when the buyer then transfers the property to a third party, even a person who purchases the property in good faith (i.e., a bona fide purchaser). An exception exists when the seller permits the buyer to possess the property.

PMSI Application of Payments

When the extent to which a security interest is a PMSI depends on the application of a payment of a particular obligation, the payment must be applied: i) In accordance with the parties' reasonable agreement; ii) If there is no reasonable agreement, in accordance with the manifestation of the obligor before or at the time the payment is made; or iii) If neither (i) nor (ii) apply, then first to unsecured obligations and then to obligations secured by a PMSI in the order in which the obligations were incurred.

Justified Refusal of Financing Statement

When the filing office's refusal to accept a financing statement for filing is justified, the financing statement is treated as having not been filed. Grounds upon which the filing office may justifiably refuse to accept a financing statement include the failure to tender the required fee, the failure to submit the financing statement by an authorized method or medium of communication, and the failure of the record to identify a debtor. UCC § 9-516(b).

Retention of the deed by the grantor

When the grantor keeps the deed, intent to transfer is not presumed. Instead, parol evidence is admissible to establish whether the grantor had the intent to make a present transfer of the property interest.

Transfer of the deed to a grantor's agent

When the grantor transfers the deed to her own agent (e.g., an attorney), the transfer is treated as if the grantor had retained the deed, even when the grantor has instructed the agent to deliver the deed to the grantee at some future time or upon the happening of an event. Until the grantor's agent delivers the deed to the grantee, the grantor can demand that the agent ignore the prior instruction and return the deed to the grantor.

Transfer of the deed to a grantee's agent

When the grantor transfers the deed to the grantee's agent, the transfer is treated as if it had been made to the grantee herself.

Mistaken Party's Negligence in Contract Formation

When the mistake is attributable to a party's failure to know or discover facts before entering into the contract, the party may nonetheless assert the defense of mistake, unless the party failed to act in good faith and in accordance with the reasonable standards of fair dealing. The mistaken party's negligence with regard to the mistake is not sufficient to prevent the mistaken party from avoiding the contract. Restatement (Second) of Contracts § 157.

Promissory Estoppel - Contracts

When the offeree reasonably and detrimentally relies on the offeror's promise prior to acceptance, the doctrine of promissory estoppel may make the offer irrevocable. It must have been reasonably foreseeable that such detrimental reliance would occur in order to imply the existence of an option contract. The offeror is liable to the extent necessary to avoid injustice, which may result in holding the offeror to the offer, reimbursement of the costs incurred by the offeree, or restitution of the benefits conferred.

In pari delicto and restitution for illegality in contract

When the parties are not equally at fault (not in pari delicto), the less guilty party may be able to recover restitutionary damages. Restatement (Second) of Contracts § 198.

Negligence - Property Damage

When the plaintiff's real or personal property is injured or destroyed by the defendant's tortious conduct, the general rule is that the plaintiff may recover the difference between the fair market value of the property immediately before the injury and immediately after the injury.

UCC Statute of Frauds

When the price of goods is at least $500, the UCC requires a memorandum of the sale that must: (1) Indicate that a contract has been made; (2) Identify the parties; (3) Contain a quantity term; and (4) Be signed by the party to be charged. The memorandum needs to be signed only by the party disputing the existence of the contract; it is not necessary for the enforcing party to have signed the writing.

Promisee's Rights with Third-Party Beneficiary

When the promisor fails to pay the third-party beneficiary, the promisee, on behalf of the third-party beneficiary, can sue the promisor for specific performance of the promise. In addition, when the promisee has paid a creditor beneficiary pursuant to their agreement, the promisee can directly sue the promisor for reimbursement to the extent of the promise and, if the creditor beneficiary's claim is fully satisfied, by subrogation to the beneficiary's claim against the promisor.

Death of Seller of Real Property

When the seller-decedent has devised his real property interests, the proceeds from the sale of the property under contract are treated as personal property that passes to the devisee of the seller-decedent's personal property. The devise of the real property itself is treated as having been adeemed. In jurisdictions that have adopted an anti-ademption statute, the devisee of the seller?decedent's real property is entitled to the sale proceeds.

Voidable Title

When the true owner of goods sells them to another, but the sale is voidable because of fraud, because of lack of capacity, or because it was a cash sale and the buyer failed to pay or paid with a dishonored check, the buyer may transfer good title to a good-faith purchaser. UCC § 2-403.

Sales of accounts, chattel paper, payment intangibles, or promissory notes

When the underlying transaction is the sale of accounts, chattel paper, payment intangibles, or promissory notes, then the debtor is not entitled to any surplus, and the obligor is not liable for any deficiency. UCC §§ 9-608(b), 9-615(e).

Perfected vs. Perfected

When there are two or more perfected secured parties with rights in the same collateral, the first to file or perfect has priority. In other words, if both security interests are perfected, then priority dates from the time of filing or perfection, whichever occurs first. UCC § 9-322.

Perfected vs. Perfected - Lapse

When there has been filing or perfection by a secured party, a lapse (i.e., a subsequent period in which there is neither filing nor perfection by that secured party) restarts the clock for that secured party; the date of perfection for that secured party is the earlier of the date of filing or perfection that occurs after the lapse. UCC § 9-322(a)(1).

Assignment of Claims and Diversity Jurisdiction

When there is a legitimate assignment of a claim, the assignee becomes the real party in interest and its citizenship, as opposed to the assignor's citizenship, will be determinative. For example, when an insurance company pays an insured for damages caused by a third party and sues the third party in a subrogation action, the company's citizenship, and not the insured's citizenship, controls for diversity purposes. If the assignment is being effected to manufacture or create diversity jurisdiction collusively, however, under § 1359, diversity jurisdiction will not exist. See, e.g., Kramer v. Caribbean Mills, Inc., 394 U.S. 823 (1969) (assignment to a nominal party having no real interest in the claim is found to be collusive).

Tender - Cancelling Installment Contract

When there is a nonconforming tender or a tender of nonconforming goods under one segment of an installment contract, the buyer may cancel the contract only if the nonconformity substantially impairs the value of the entire contract to the buyer.

Paternity Blood Test

When there is a question as to who is the father of a child, a court may order blood tests of the child and the possible fathers to determine paternity. If a defendant involved in a paternity matter is indigent, he is entitled to blood testing at the state's expense to establish or disprove paternity. Little v. Streater, 452 U.S. 1 (1981). If the test disproves paternity, then the case seeking child support must be dismissed.

Retrieval of the deed from an independent agent by the grantor

When there is a written contract, the grantor cannot require the escrow agent to return the deed prior to the failure of the condition to occur. When the contract is oral, the grantor can reclaim the deed from the escrow agent because the Statute of Frauds requires a writing for a land sales contract to be enforceable.

Rights of Contract Assignor

When there is assignment of a party's rights under a contract, and the assignment is not revoked, the assignor cannot enforce the contract.

Property Division between Unmarried Cohabitants

When there is no express contract, courts will generally provide for equitable distribution of property based on a resulting trust, constructive trust, or quantum meruit theory to avoid unjust enrichment.

Notification of Account Debtors

When there is not an outstanding secured obligation and the secured party is not committed to make advances or otherwise give value, the debtor can demand that the secured party notify account debtors (i.e., persons obligated to the debtor on an account, chattel paper, or general intangible) that they are no longer required to make payments to the secured party. The secured party must send the notification within 10 days after receiving an authenticated demand by the debtor. UCC §§ 9-102(a)(3), 9-209.

Venue Transfer based on forum selection clause

When transfer is sought on the basis of a forum selection clause in a contract, the clause is accorded respect. If the clause specifies a federal forum, most circuit courts, following M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), treat the clause as prima facie valid, to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause was invalid for reasons such as fraud or overreaching. Furthermore, in Atlantic Marine Construction Co. v. United States District Court, 571 U.S. ___, 134 S. Ct. 568 (2013), the Supreme Court held that a forum selection clause should be given "controlling weight in all but the most exceptional cases." A few circuit courts, however, following Stewart Organization Inc. v. Ricoh Corp., 487 U.S. 22 (1988), treat the clause as a significant, but not determinative, factor. If the clause specifies arbitration or a state or foreign forum, the clause is generally enforceable and the federal action dismissed. When venue is transferred based on a valid forum selection clause, the transferee court must apply the law, including the choice-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue. Atlantic Marine, 134 S. Ct. at 582.

Verdicts in error

When, prior to the dismissal of the jury, a party believes that the jury has returned an erroneous verdict that can be corrected, the party must raise this issue with the court. If the court believes that the jury did not properly follow its instructions, the court may set aside the verdict and ask the jury to reconsider the issue or alternatively order a new trial.

Future Interest in Grantor - possibility of reverter

When, upon the occurrence of the stated condition, the estate automatically reverts back to the grantor, the future interest is known as a "possibility of reverter." The estate reverts back to the grantor whether or not the language of the grant specifically mentions the owner of this future interest. A possibility of reverter is freely alienable by the grantor, both during his life and upon his death.

Future interest in third party - executory interest

When, upon the occurrence of the stated condition, the estate automatically reverts to a third party (i.e., a person other than the grantor or the holder of the present interest), the future interest is known as an "executory interest." The estate reverts back to a third person only when the language of the grant specifies this person. An executory interest is freely alienable by the third party, both during his life and upon his death.

Principal's Duty of Compensation

Whether a principal is obligated to compensate an agent depends on the terms of their agreement. To recover compensation, an agent must show that the principal expressly or impliedly agreed to pay compensation. If a principal has promised to pay compensation, then the agent can maintain an action for damages if the principal fails to pay.

Mortgagee's right to possession - lien theory

Whether the mortgagee may take possession of the real property depends on the theory of title that the jurisdiction follows. In a lien theory state, the mortgagee cannot take possession prior to foreclosure because the mortgagor is considered to be the owner of the real property until foreclosure.

Recording Acts generally

While a deed need not be recorded to be valid and convey good title, all states have enacted recording acts, which establish priorities among conflicting claims to real property interests and promote certainty of title. Nearly all instruments affecting real property interests may be recorded, including easements, covenants, leases, contracts to convey, and mortgages. Some states also require the grantor to acknowledge the deed before a notary public before accepting it for recording, in an attempt to prevent fraudulent transfers. Unless the recording act governs, the common law rule of "first in time, first in right" generally applies to determine priorities.

Nationwide Personal Jurisdiction

While a federal court generally is not vested with nationwide personal jurisdiction, Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97 (1987), a federal court does have national personal jurisdiction when authorized by federal statute, such as for federal statutory interpleader actions.

Quasi-In-Rem Jurisdiction

While a judgment in rem determines the interests of all persons in particular property, a quasi-in-rem judgment determines only the interests of the parties to the action regarding property located in the forum state. Traditionally, the judgment was not personally binding on the defendant, could not be sued upon in any other court, and could not be enforced by seizing any property of the defendant other than the property at issue in the quasi-in-rem action.

Shaffer minimum contacts for In Personam Jurisdiction

While before Shaffer it was possible to gain jurisdiction over a person merely on the basis of the presence within the state of property of the person, after Shaffer such an attempt to gain in personam jurisdiction is subject to the International Shoe requirement of minimum contacts. Note that Shaffer expressly excluded actions to enforce previous judgments by such remedies as attachment, garnishment, and sequestration from the requirement of minimum contacts with the defendant. See Shaffer v. Heitner, 433 U.S. at 210.

In Rem Jurisdiction Due Process

While in rem proceedings are commenced against property, they must still satisfy due process requirements for personal jurisdiction because they affect the rights of individuals in the property. In general, for in rem jurisdiction to exist, the property at issue must be present within the forum state. Shaffer v. Heitner, 433 U.S. 186 (1977). In rem jurisdiction can be challenged if the property is fraudulently brought into the state. Due process is met if the notice is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). It is not sufficient to simply post the notice on the property or publish the notice in a newspaper as to persons who are known to have an interest in the property and whose whereabouts are reasonably ascertainable. Walker v. City of Hutchison, 352 U.S. 112 (1956). In addition, any absent defendant who does not personally receive notice may set aside the judgment at any time within one year of the final judgment. 28 U.S.C. § 1655.

Real Covenants generally

While the enforceability of a covenant by the original parties to the covenant is governed by contract law, a covenant linked to real property may also be enforced by and against subsequent landowners as a matter of property law. Such a covenant is known as a "real covenant," i.e., a covenant that runs with the land.

Negligence - Foreseeability of Harm

While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty. The foreseeability of the type of harm is also relevant to proximate cause.

Timing of introduction of omitted evidence

While the rule of completeness permits an adverse party to compel the immediate introduction of evidence during the presentation of related evidence, the rule does not require the adverse party to do so. The adverse party may instead choose to present the omitted evidence subsequently, such as during cross-examination.

Product Misuse in Implied Warranty claims

With or without using the language of "product misuse," most courts find that product misuse prevents recovery under the implied warranty of merchantability when the product is warranted to be fit for ordinary purposes.

Right to jury trial in diversity cases

With regard to state-law claims in diversity actions, federal law generally determines whether there is a right to a jury trial and whether an issue is legal or equitable. Simler v. Conner, 372 U.S. 221 (1963). However, federal courts apply state law when taking into account a motion for a new trial based on excessiveness of the verdict. Gasperini v. Center for Humanities, 518 U.S. 415 (1996).

Mortgage as a Financing Statement

With respect to collateral related to real property, a mortgage may serve as a financing statement, provided it contains the necessary information. A mortgage is effective as of the date of its recording. UCC § 9-502(c).

Personal Jurisdiction over an out-of-state parent

With respect to proceedings to establish or enforce child support or to determine parentage, a court obtains personal jurisdiction over an out-of-state parent pursuant to a long-arm provision in the Uniform Interstate Family Support Act (UIFSA), which has been adopted by every state. The ways in which a court can obtain personal jurisdiction are: (1) Personal service on the defendant parent; (2) Consent of the defendant parent, such as by entering an appearance in the action; (3) Past residency with the child in the state; (4) Past residency in the state and the provision of prenatal expenses or support for the child; (5) Residency of the child in the state as a result of acts or directives of the parent defendant; (6) The parent defendant engaged in sexual intercourse in the state, and the child may have been conceived by that act; (7) The parent defendant asserted parentage in the putative father registry maintained by the state; or (8) Any other basis consistent with federal and state constitutions for the exercise of personal jurisdiction. It is important to note that the U.S. Supreme Court has not yet spoken on the constitutionality of the UIFSA's long-arm provisions. Several states, however, have upheld the provision as meeting the requisite due-process requirements. See, e.g., Poindexter v. Poindexter, 594 N.W.2d 76 (Mich. Ct. App. 1999); County of Humboldt v. Harris, 254 Cal. Rptr. 49 (Cal. Ct. App. 1988). In so holding, state courts have relied on the voluntary nature of the sexual act or conduct; that conception is a logical result of that conduct; and the state's strong interest in protecting its minor children in all regards, including financially. As the obligation to support a child extends to at least the age of majority, there is no time limit on the assertion of jurisdiction under this statute. UIFSA § 201, cmt.

Objections to pretrial disclosures