UBE Essays
What is the business record exception to the hearsay rule?
A business record is excepted from the hearsay rules if the record was (1) kept in the course of a regularly conducted activity, (2) made as a regular practice for that activity, and (3) made at or near the time of the act or event by someone with knowledge.
A conflict-of-interest transaction may enjoy safe-harbor protection via: (3 ways)
A conflict-of-interest transaction may enjoy safe-harbor protection via: (1) a majority vote of informed and disinterested directors, (2) a majority vote of informed and disinterested shareholders, or (3) fairness of the transaction. The fairness test looks at the substance and procedure of the transaction. Substantively, the test asks whether the corporation received something of comparable value in exchange for what it gave to the director. Procedurally, it looks at whether the process followed by the directors in reaching their decision was appropriate. The interested directors have the burden of establishing both the substantive and procedural fairness of the transaction. A conflict-of-interest transaction in violation of the safe-harbor provisions may be enjoined or rescinded, and the corporation may seek damages from the directors.
When may federal courts exercise diversity jurisdiction over actions?
Federal courts may exercise original diversity jurisdiction over actions when: (1) the parties to an action are citizens of different states and (2) the amount in controversy in the action exceeds $75,000. Generally, 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.
What must happen for an out-of-court statement to be admissible against a criminal defendant?
For an out-of-court statement to be admissible against a criminal defendant, the Sixth Amendment Confrontation Clause requires that the declarant be unavailable and the defendant must have had a opportunity to cross-examine the declarant.
A principal is 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. For apparent authority to exist...
For apparent authority to exist, a third person must believe that the agent acted with actual authority, and such belief must be reasonable and be traceable to a manifestation by the principal.
For a board of directors' act at a meeting to be valid, what must there be?
For the board of directors' acts at a meeting to be valid, a quorum of directors must be present at the meeting. Generally, a majority of all directors in office constitute a quorum, unless a higher or lower number is required by the articles of incorporation or bylaws. A director must be present at the time the vote is taken in order to be counted for quorum purposes. Presence includes appearances made using communications equipment that allows all persons participating in the meeting to hear and speak to one another.
When may a civil action be transferred? To where can the action be transferred?
For the convenience of parties and witnesses and 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.
A buyer of collateral subject to a perfected security interest generally takes the collateral subject to that interest. However, 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. Who is a BOCB?
A BOCB is a person who: (1) buys goods, (2) in the ordinary course, (3) from a seller who is in the business of selling goods of that kind, (4) in good faith, and (5) without knowledge that the sale violates the rights of another in the same goods. In order to qualify as a buyer, the purchaser must give new value, which in addition to paying cash for the goods includes purchasing the goods on credit.
A person is required to exercise the care that a reasonable person under the same circumstances would as necessary to avoid or prevent an unreasonable risk of harm to another person. The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care. This analysis considers what? (3 things)
(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 in avoiding the harm. Evidence of custom in an industry may be offered to establish the standard of care, but such evidence is not conclusive.
At common law, the validity of a will is determined under the law of the state where the testator was domiciled at the time of his death. Under the UPC, validity is determined under the law of the place where what? (2 things)
(1) the will was executed, or (2) the testator is domiciled, has a place of abode, or is a national at the time of death.
A conflict-of-interest transaction, or self-dealing, is defined as what?
A conflict-of-interest transaction, or self-dealing, is any transaction between a director and his corporation that would normally require approval of the board of directors and that is of such financial significance to the director that it would reasonably be expected to influence the director's vote on the transaction. The interest involved can be direct or indirect, but it must be financial and material. Normally, majority approval of a conflict-of-interest transaction by fully informed disinterested directors triggers the business judgment rule under a safe harbor provision.
What is a construction eviction?
A constructive eviction occurs when a landlord substantially interferes with the tenant's use and enjoyment of the property by breaching a duty to the tenant. As such, the tenant's obligation to pay rent may be excused. In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable time. Typically, temporary or de minimis acts do not amount to constructive eviction.
A corporation is deemed to be a citizen where?
A corporation is deemed to be a citizen of every state in which it has been incorporated and the state where it has its principal place of business. A corporation's principal place of business is generally its corporate headquarters. An individual is domiciled in the state in which he is present and intends to reside for an indefinite period. Additionally, a plaintiff's good-faith assertion in the complaint that the action satisfies the amount-in-controversy requirement is sufficient, unless it appears to be a legal certainty that the plaintiff cannot recover the amount alleged.
A court hearing a family related dispute must generally have what? (2 things)
A court hearing a family-related dispute must generally have both subject matter and personal jurisdiction.
A director may violate his duty of loyalty how?
A director may violate his duty of loyalty by usurping a corporate opportunity rather than first offering the opportunity to the corporation. In determining whether the opportunity is one that must first be offered to the corporation, courts have applied the "interest or expectancy test. Under the interest or expectancy test, the key is whether the corporation has an existing interest or an expectancy arising from an existing right in the opportunity. An expectancy can also exist when the corporation is actively seeking a similar opportunity.
What is a holographic will?
A holographic will is in a testator's handwriting, signed by the testator, and need not be witnessed.
What is a holographic will?
A holographic will is one that is completely handwritten and signed by the testator.
A lessor who is unsure if it is a true lease or secured transaction will want to take steps to comply with the necessary filing rules By making such a protective filing, the lessor is not prevented from asserting what?
A lessor who is unsure if it is a true lease or secured transaction will want to take steps to comply with the necessary filing rules and 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.
What is a material breach of contract and what implications does it have on the breaching and non-breaching parties?
A material breach of contract occurs when the non-breaching party does not receive substantial benefit of the bargain. The material breach allows the non-breaching party to withhold any promised performance and to pursue remedies for the breach, including damages. The breaching party who failed to substantially perform generally cannot recover contract damages but may be able to recover through restitution.
What is a transferable partnership interest? What does the transfer of a partnership interest create?
A partner has a transferable partnership interest (i.e., a partner may transfer the right to share in the profits and losses of the partnership and to receive distributions. The transfer of that partnership interest creates in the transferee a right to receive distributions to which the transferor would otherwise be entitled.
What is a partnership? How do you determine whether a business arrangement is a partnership?
A partnership is an association of two or more persons to carry on a for-profit business as co-owners. The key consideration in determining whether a business arrangement is a partnership is whether there is a sharing of the profits from the business. If so, such an arrangement generally is presumed to be a partnership, and persons who share in the profits are partners, However, a partnership does not exist between persons when one person receives profits in payment of a debt.
What is a present sense impression?
A present sense impression is an exception to the hearsay rule. It is an out-of-court statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it. A present sense impression is an exception to the hearsay rule and admissible regardless of the declarant's availability to testify.
When is a principal partially disclosed?
A principal is partially disclosed if the third party has notice of the principal's existence but not the principal's identity. Unless the agent and the third party agree otherwise, an agent who enters into a contract on behalf of a partially disclosed principal becomes a party to the contract.
What is a prior statement of identification?
A prior statement of identification is an exclusion to the hearsay rule. A previous out-of-court identification of a person made after perceiving that person is not hearsay and is admissible as substantive evidence by the testimony of the declarant witness. Even if the witness has no memory of the prior identification, it will be admissible because the witness is subject to cross examination about the prior identification.
What must there be for an arrest to be proper?
A proper arrest is one that is based on probable cause. Facts supporting probable cause may come from a number of different sources including a police officer's personal observations.
What is a purchase money security interest? PMSI?
A purchase money security interest ("PMSI") is a special type of security interest that has different rules regarding perfection and priority. A PMSI in goods exists when 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. A PMSI in goods other than inventory or livestock prevails over all other security interests in collateral, even if they were previously perfected, if the security interest is perfected when the debtor receives possession of the collateral within 20 days.
A security interest that is enforceable against the debtor with respect to the collateral is said to have attached to the collateral. In order to be enforceable, the secured party must: (3 things)
A security interest that is enforceable against the debtor with respect to the collateral is said to have attached to the collateral. In order to be enforceable, the secured party must: (1) give value, (2) the debtor must have rights in the collateral, and (3) either the debtor has to authenticate a security agreement that describes the collateral or the secured party must have possession or control of the collateral pursuant to a security agreement. The security interest can attach to collateral that the debtor acquires in the future. Collateral that is tangible includes goods, which are anything that can be moved when the security interest attaches. Equipment is anything that is not consumer goods, farm products, or inventory.
A statement describing past or present symptoms is not excluded as hearsay if the statement was made for the purpose of what?
A statement describing past or present symptoms is not excluded as hearsay if the statement was made for the purpose of medical diagnosis or treatment.
What is a testimonial statement? What is not a testimonial statement?
A statement that is made for the primary purpose of ascertaining past criminal conduct is testimonial. By contrast, a statement made primarily to enable police to render aid to meet an ongoing emergency is not testimonial.
Under what circumstances can a defendant claim the duress defense?
A third party's unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the duress defense.
Does a true lease of goods create a security interest?
A true lease of goods does not create a security interest. However, a transaction that appears to be in the form of a lease may actually be a secured transaction, creating a security interest. The transaction may be categorized as a secured transaction 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 four conditions is met, including when 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.
When is a warrantless search valid?
A warrantless search is valid if it is reasonable in scope and if it is made incident to lawful arrest. Under the plain view doctrine, if an item is in public view it may be seized without a warrant since there is no reasonable expectation of privacy for such an item. The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe it contains contraband or evidence of a criminal activity.
Can a will incorporate another writing not executed with testamentary formalities? What requirements must the other writing meet?
A will may incorporate by reference another writing not executed with testamentary formalities, provided the other writing meets three requirements: (1) it existed at the time the will was executed, (2) the testator intended the writing to be incorporated, and (3) the writing is described in the will with sufficient certainty so as to permit its identification.
Is a witness's bias relevant to the credibility of their testimony?
A witness's bias is always relevant to the credibility of his testimony. Although the Federal Rules do not expressly require that a party ask the witness about an alleged bias before introducing extrinsic evidence of that bias, many courts require that such a foundation be laid before extrinsic evidence can be introduced.
Absent a statutory or contractual obligation, a landlord in a commercial lease only has a duty to make a repair if: (2 things)
Absent a statutory or contractual obligation, a landlord in a commercial lease only has a duty to make a repair if: (1) the repair is so substantial that it would not ordinarily fall within the tenant's common law repair duty, or (2) the value of the repair would primarily inure to the landlord's reversionary interest.
In obtaining the goods under the BOCB exception, the buyer may sell the goods to who?
Additionally, in obtaining goods under the BOCB exception, the buyer may sell the goods to a second buyer who would also take the goods free of the security interest. The second buyer is not required to qualify as a BOCB.
Can notice for a special meeting be waived? How?
Although directors are entitled to notice of a special meeting, a director's attendance waives notice of that meeting unless the director promptly objects to lack of notice. As a director, Claire is entitled to notice of the special meeting. As discussed above, that notice must be provided at least two days prior to the special meeting, unless the articles or bylaws provided otherwise.
When does an agent have the authority to bind a principal to a contract?
An agent has the power to bind the principal to a contract when the agent acts with actual or apparent authority. Actual authority exists when the principal makes a manifestation that causes the agent to reasonably believe that the agent is authorized to act on the principal's behalf.
What happens when an agent enters into a contract on behalf of an undisclosed principal?
An agent who enters into a contract on behalf of an undisclosed principal becomes a party to the contract. A principal is an undisclosed principal if the third party has no notice of the principal's existence. Thus, when the agent does not inform a third party of the identity or the existence of the principal, the agent becomes liable to the third party on the contract.
What is an easement by prior use/when is it created?
An easement by prior use may be created if the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land's use and enjoyment.
What is an excited utterance?
An excited utterance is an exception to the hearsay rule. An excited utterance is a statement made about a startling event or condition while the declarant is under the stress or excitement that it caused.
An expert witness's opinion testimony is admissible when what? (4 things)
An expert witness's opinion testimony is admissible when (1) the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the testimony is based on sufficient facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the witness applied the principles and methods reliably to the facts of the case.
How can a witness be impeached? By what evidence?
Any witness can be impeached by evidence that they have been convicted of a crime that involved dishonesty or false statement, regardless of the punishment imposed or the prejudicial effect of the evidence. However, conviction for a crime involving fraud or dishonesty is admissible to impeach only if the crime is punishable by death or imprisonment for more than one year. A crime involves dishonesty or false statement if establishing the elements of the crime requires proof or admission of an act of dishonesty or false statement.
When does apparent authority exist?
Apparent authority exists when a third party reasonably relies on manifestation by the principal concerning the agent's authority to act on the principal's behalf.
Under the common law, if a breaching party has substantially performed, what is required of the non-breaching party?
Applying the common law, if the breach in question, that means the breaching party has substantially performed and that the non-breaching party is still required to perform under the contract. This allows a party who substantially performs to recover on the contract even though that party has not rendered full performance. Generally, the substantially performing party can recover the contract price minus the cost to the other party of obtaining the promised full performance.
What types of speech is protected under the 1st Amendment? Cant he government regulate speech? How/when?
As discussed above, the First Amendment protects freedom of speech. Protected speech can include written, oral, and visual communication, as well as activities such as picketing and leafleting. The government's ability to regulate speech depends on the forum in which the speech takes place. Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks. In these forums, the government may only regulate speech if the restrictions are: (1) content-neutral with respect to subject matter and viewpoint, (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternative channels for communication.
What is custodial interrogation?
Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody. A person under arrest is, by definition, in custody and any police questioning of the person under arrest would thus be custodial interrogation. Questioning of a suspect by a police officer subsequent to an arrest must be preceded by Miranda warnings and a waiver or the suspect's Miranda rights are violated.
Diversity in a class action brought pursuant to Rule 23 will generally be determined by what?
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 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.
Directors are entitled to notice of a special meeting. What notice is required?
Directors are entitled to notice of a special meeting. Unless the articles of incorporation or bylaws provide otherwise, notice must be provided at least two days prior to the meeting and should state the date, time, and place of the meeting. The meeting need not describe the purpose of the special meeting.
Evidence of a person's habit is admissible to prove what?
Evidence of a person's habit is admissible to prove that the person acted in accordance with the habit on a particular occasion. A habit is a person's particular routine reaction to a specific set of circumstances. Courts generally limit habit evidence to proof of relevant behaviors that are not just consistent but semi-automatic.
Overview of life insurance policy. A beneficiary takes by virtue of what? Are the proceeds part of the decedent's estate?
Generally, a beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent's estate unless they are payable to the decedent's estate as a beneficiary. Life insurance policies typically provide that proceeds will only be paid to a beneficiary named on an appropriate form filed with the insurance company; other possible methods of changing a beneficiary are thus viewed as being excluded by the insurance contract. However, some courts have upheld a beneficiary change by will if the insurance company does not object.
Is a defendant liable for the full extent of plaintiff's injuries even if plaintiff had pre-existing injuries?
Generally, a defendant is liable for the full extent of the plaintiff's injuries due to the plaintiff's preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.
Generally, a federal court cannot decide a case unless the plaintiff has what? What do you need to have standing?
Generally, a federal court cannot decide a case unless the plaintiff has standing to bring it. To have standing, a plaintiff must prove three elements: (1) injury in fact, (2) the injury was fairly traceable to the challenged action, and (3) the relief requested must prevent or redress the injury.
Generally, a security interest that is enforceable against the debtor is said to have attached to the collateral. To that end, what does attachment require? (3 things)
Generally, a security interest that is enforceable against the debtor is said to have attached to the collateral. Attachment requires that: (1) value has been given by the secured party, (2) the debtor has rights in the collateral, and (3) the debtor has authenticated a security agreement that describes the collateral pursuant to a security agreement. Inventory includes goods, other than farm products, that are held for sale or lease.
Jurisdiction rule for modifying child support
Generally, 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 US Constitution's full faith and credit clause.
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child's needs or parent's financial situation. What qualifies as a "substantial change"? Who has the burden of showing a substantial change in circumstances?
Generally, a state may prospectively modify a child support order when there is a substantial change in circumstances regarding the child's needs or parent's financial situation. The parent requesting modification has the burden of showing a substantial change in circumstances such as a significant decrease in income. However, when a parent voluntarily changes his employment, a reduction income alone is not sufficient proof of a substantial change in circumstances. The courts will consider the parent's earning capacity and other factors surrounding the change before deciding whether to modify the support award.
Generally, an out of court statement made by a party to the current litigation is not hearsay when offered for its truth by who?
Generally, an out of court statement made by a party to the current litigation is not hearsay when offered for its truth by an opposing party.
What law is applied in venue transfer actions?
Generally, if the venue of an action is transferred when the original venue is proper, the court to which the action is transferred must apply the law of the state of the transferor court, including that state's rules regarding conflict of law. However, when venue is transferred between federal courts based on a valid forum selection clause, the transferee court must apply the law, including choice-of-law rules, of the state in which it is located.
Are modifications of child support awards permissible? In what circumstances? When is a modification award enforceable?
Generally, modifications of an award of child support are permissible when there is a substantial change in circumstances regarding the child's needs or the parents' financial situation, and that change is expected to be continuing, rather than temporary. A modification award is enforceable on the date of service of the motion on the opposing party, but support obligations that have accrued prior to that date may not be modified.
In terms of civil procedure, what is removal? Who may remove a civil action? Where can an action be removed to?
Generally, the defendant in any civil action filed in state court has the right to remove it to the district court for the district in which the state court action was filed so long as the civil action is within the original jurisdiction of a US district court.
Where is venue proper? When is transfer of venue proper? When is a forum selection clause in a contract set aside?
Generally, venue is proper in a judicial district in which any defendant resides or in a judicial district in which a substantial part of the events or omissions on which the claim is based occurred. Moreover, 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 treat the clause as prima facie valid and are to be set aside only upon a strong showing that transfer would be unreasonable and unjust or that the clause is invalid for reasons such as fraud or overreaching.
How are gifts by will abated?
Gifts by will are abated (i.e., reduced), when the assets of the estate are insufficient to pay all debts and legacies. If not otherwise specified in the will, gifts are abated as such: (1) intestate property; (2) residuary bequests, (3) general bequests, and then (4) specific bequests. Abatement within each category is pro rata.
What is hearsay?
Hearsay is an out-of-court statement by the declarant that is offered to prove the truth of the matter asserted. Hearsay is generally inadmissible unless an exception or exclusion applies. One such exception is the excited utterance exception.
Generally, a controlling shareholder, such as a parent corporation, does not owe a fiduciary duty to the corporation or other shareholders. However...
However, decisions by a majority of shareholder or control group may be reviewable by a court for good faith and fair dealing toward the minority shareholders under the court's inherent equity power.
If ESI is lost because a party failed to take reasonable steps to preserve it and it cannot be replaced or restored, the court can do what?
If electronically stored information that should have been preserved in the anticipation 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, then the court: (1) upon finding prejudice to another party, may order measures no greater than necessary to cure prejudice, (2) 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. Generally, the harshest sanctions such as a dismissal of the action or entry of default judgment, are reserved for the most egregious or inexcusable conduct.
What happens if only one security interest is perfected and the other is not?
If only one security interest is perfected and the other is not, then the perfected interest has priority over the unperfected one.
In a civil case, evidence of person's character trait is generally admissible or inadmissible?
In a civil case, evidence of person's character trait is generally inadmissible to prove that person acted in accordance with that trait on a particular occasion.
In a criminal case, can the prosecution introduce evidence of a defendant's bad character to prove propensity?
In a criminal case, the prosecution is not permitted to introduce evidence of a defendant's bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
What is the general measure of damages in a construction contract?
In construction contracts, the general measure of damages for a contractor's failure 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. When a breach results in a defective or unfinished construction, if the award of damages based on the cost to fix or complete the construction would result in economic waste, then a court may instead award damages equal to the diminution in the market price caused by the breach. Economic waste occurs when the cost to fix or complete the construction is clearly disproportional to any economic benefit or utility gained as a result.
In order for representative members of a class to sue or be sued on behalf of all members of the class there must be what: (4 things)
In order for representative members of a class to sue or be sued on behalf of all members of the class: (1) the class must be so numerous that joinder of all members is impracticable, (2) there must be questions of law or fact that are common to the class, (3) the claims or defenses of the representatives must be typical of the class, and (4) the representatives must fairly and adequately protect the interests of the class.
Interrogation of an arrestee must stop when and for how long? How does an arrestee invoke his right to counsel and per what Amendment?
Interrogation of an arrestee must stop once the arrestee invokes the right to counsel under the Fifth Amendment. The interrogation must stop until counsel is present. However, the right to counsel under the Fifth Amendment is not automatic. In order to invoke this right, the defendant must make a specific, unambiguous statement that he wishes to have counsel present.
Can a principal ratify an act done on the principal's behalf? How/what are the requirements? (4 things)
Nonetheless, a principal can ratify an act that was done of the principal's behalf. There are four requirements for ratification to occur: (1) the principal must ratify the entire contract, (2) the principal and third party must have legal capacity to enter into the contract, (3) the ratification must occur before the third party withdraws from the contract, and (4) the principal must know the material facts of the transaction.
What is perfection of a security interest? When is it necessary and how can it be perfected?
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. A security interest in goods can be perfected by filing a financing statement.
Perfection of a security interest is necessary for the secured party to have superior right in the collateral. A security interest is perfected when the collateral attaches and the secured party complies with one of the methods of perfection, which include: (3 methods)
Perfection of a security interest is necessary for the secured party to have superior right in the collateral. A security interest is perfected when the collateral attaches and the secured party complies with one of the methods of perfection, which include: (1) filing a financing statement, (2) having possession or control of the collateral, (3) can be automatically perfected. When there are two or more perfected secured parties with rights in the same collateral, the first to file or perfect its security interest has priority. If both security interests are perfected, them priority dates from the time of filing or perfection, whichever occurs first.
What is physical custody (in terms of child custody matters) and what is the standard for determining child custody/what will the court take into account?
Physical custody is the right to have the child reside with the parent and provide for routine daily care and control of the child. The standard for determining child custody is the best interests and welfare of the child. In addition, courts can consider who the primary caretaker of the child was during the marriage and the separation, and prior to divorce, as factors in determining who should have custody. The court will also take into account the existence of any domestic violence between the parties when awarding custody and some jurisdictions have created a rebuttable presumption in favor of the non-abusive spouse.
What is partnership property?
Property is partnership property if it is acquired in the name of the partnership. It is property of the partnership and not of the partners individually. A partner may use or possess partnership property only on behalf of the partnership.
What is spousal support and can an order for spousal support be modified? In what circumstances?
Spousal support is an obligation of one party to provide financial support to the other after a divorce. Courts can modify a spousal support order based on a significant change in circumstances. Property division, on the other hand, is a one-time award of assets based on equity at the time of divorce. Because this property division is essentially frozen in time when the divorce is finalized.
What does standing require?
Standing requires a concrete and particularized injury even in the context of a statutory violation. The injury need not be physical or economic. An injury such as the invasion of privacy may be sufficiently concrete injury even when extensive damages cannot be proved.
What court(s) has/have subject matter jurisdiction over domestic relations issues? Is a petition to modify a property settlement related to divorce a domestic relations issue?
State courts have subject matter jurisdiction over domestic relations issues. A petition to modify a property settlement related to divorce is a domestic relations issue. Unlike child support, UIFSA does not apply to divorce related property disputes so those jurisdictional rules do not limit the state's jurisdiction. However, the court may exercise personal jurisdiction over an individual if that person is voluntarily present in the state and served with process while there.
The doctrine of claim preclusion (res judicata) provides what?
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. For claim preclusion to apply, the claimant and the defendant must be the same in both the original action and the subsequently filed action. Because application of claim preclusion is limited to the parties or their privies, a similar action by a different party would not be precluded.
When does termination of a lease occur?
Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises.
The Constitution generally protects against wrongful conduct by who?
The Constitution generally protects against wrongful conduct by the government, not private parties. A private person's conduct must constitute state action in order for these protections to apply. State action is found when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a "company town."
The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt. Does a mandatory presumption regarding an element of an offense violate the due process clause?
The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt. A mandatory presumption regarding an element of an offense violates the due process requirement. This includes either a conclusive presumption that cannot be rebutted or a rebuttable mandatory presumption.
Are expert reports including drafts protected by the Fed Rules of Civ Pro? In what circumstances/why?
The Federal Rules of Civil Procedure protect drafts of any expert report or disclosure related thereto. 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 matter by other means.
What is double jeopardy and what Amendment protects against it?
The Fifth Amendment protection against double jeopardy applies to the states through the Due Process Clause of the Fourteenth Amendment and protects against multiple punishments for the same offense. If a defendant's conduct may be prosecuted as two or more crimes, then the Blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes.
The 1st Amendment is applicable to the states through what Amendment? What does it protect?
The First Amendment is applicable to the states through the Fourteenth Amendment and protects the freedom of speech as well as the freedom not to speak. One such example is a child's right not to recite the Pledge of Allegiance.
What is the 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. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant. Here, the herbal tea was not fit for its ordinary purposes because reasonable consumers would not expect herbal tea to cause severe and permanent liver damage.
What does the Fourteenth Amendment, Section 5 Enabling Clause permit Congress to do?
The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment. Still, it may not expand those rights or create new ones. In enforcing such rights, there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end. Accordingly, though Congress may override state government action that infringes upon Fourteenth Amendment rights if the congruence and proportionality test is satisfied, its enforcement power would not stretch to prohibit a law that does not violate the constitution. In other words, if there is not constitutional injury to prevent or remedy, then the proposed law would be both incongruent and disproportionate.
What implications are there for violations of Miranda by law enforcement personnel?
The Supreme Court has indicated that violations of Miranda do not necessarily support the "fruit-of-the-poisonous-tree" doctrine, at least with respect to subsequent statements by the defendant. Isolated negligence by law enforcement personnel will not trigger the exclusionary rule. The exclusionary rule would only be triggered here if the conduct of the police was shown to be sufficiently deliberate and a pattern of conduct that exclusion would deter.
The business judgment rule is what?
The business judgment rule is a rebuttable presumption that a director reasonably believe that his actions were in the best interests of the corporation. The exercise of managerial powers by a director is generally subject to the business judgment rule. However, the business judgment rule does not generally apply to a conflict-of-interest transaction.
Business dealings between a controlling shareholder and the controlled corporation that do not involve self-dealing are analyzed using the business judgment standard. What is the business judgment rule?
The business judgment rule is a rebuttable presumption that the controlling shareholder reasonably believed that his actions were in the best interests of the corporation. A typical decision protected by the business judgment rule includes whether to declare a dividend and the amount of any dividend.
When does the common law of contracts apply and when does the UCC apply?
The common law applies to contracts for services or real estate and article 2 of the UCC applies to contracts for the sale of goods. If a transaction includes both goods and services, the predominant purpose test is applied to resolve whether the common law or the UCC applies to the entire transaction.
The doctrine of issue preclusion (collateral estoppel) precludes what?
The doctrine of issue preclusion (collateral estoppel) preclude the relitigating of issues of act or law that have already been necessarily determined by a fact diner as part of an earlier claim. 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 must have been a party to the original action. Further, for issue preclusion to apply (1) the issue sought to be precluded must be the same as that involved in the prior action, (2) the issue sought to be precluded must have been actually litigated, (3) the issue must have been determined by a valid and binding final judgment, and (4) the determination of the issue must have been essential to the prior judgment.
The duty of care requires directors act how?
The duty of care requires directors to act with the care that a person in a like position would reasonably believe appropriate under similar circumstances. The director is presumed to have the knowledge and skills of an ordinary prudent person and is required to use any additional knowledge or special skills that he possesses.
The duty of loyalty requires a director to act how?
The duty of loyalty requires a director to act in a manner that the director reasonably believes is in the best interests of the corporation. A director who engages in a conflict-of-interest transaction with his own corporation has violated his duty of loyalty unless the transaction is protected under the safe-harbor rule.
What is the equal protection clause of the 14th Amendment? What does the clause apply to? What standard of review applies?
The equal protection clause of the Fourteenth Amendment provides that no state shall deny any person within its jurisdiction equal protection of the laws. This clause applies only to states and localities. Laws classifying on the basis of age are reviewed under the rational basis standard. A law passes the rational basis standard of review if it is rationally related to a legitimate governmental interest, a test of minimal scrutiny. Further, it is not required that there is actually a link between the means selected and a legitimate objective. Rather, the burden is on the challenger to show that the law is arbitrary or irrational.
How are proceeds from a foreclosure sale applied/distributed?
The proceeds from a foreclosure sale are applied first to the costs associated with the sale, second to the mortgage being foreclosed, and third to the mortgage obligations owed to junior interest holders in the order of the priority of their interest. Any remainder is paid to the debtor-mortgagor. When multiple interests must be paid out of the proceeds of a foreclosure sale, generally, the earliest mortgage placed on the property has priority over the other interests. Further, obligatory payments under a senior future-advances mortgage paid out after a junior lender remits its loan amount and records its lien have priority over amounts loaned by the junior lender.
There are three safe harbors by which a conflict of interest transaction may enjoy protection:
There are three safe harbors by which a conflict of interest transaction may enjoy protection: (1) disclosure of all material facts to, and approval by a majority of, the board of directors without a conflicting interest, (2) disclosure of all material facts to, and approval by a majority of, the votes entitled to be cast by the shareholders without a conflicting interest, and (3) fairness of the transaction to the corporation at the time of commencement. The fairness test looks at the substance and procedure of the transaction. With regard to a parent corporation engaged in self-dealing, the main concern under the fairness test is whether the benefit is comparable to what might have been obtained in an arm's length transaction. Procedural fairness is generally not at issue unless there has been a change in control.
A lay witness is generally not permitted to testify as to his opinion, except with respect to the lay witness's common-sense impressions. To be admissible, a lay witness's opinion must be (2 things)
To be admissible, a lay witness's opinion must be (1) rationally based on the witness's perception, and (2) helpful to a clear understanding of the witness's testimony or a fact in issue.
What needs to be established for a prima facie case of negligence?
To establish a prima facie case for negligence, a defendant must prove: (1) proof of a duty, (2) breach of that duty, (3) causation, and (4) damages. 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. A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
How do you form a corporation?
To form a corporation, the articles of incorporation must be filed with the state. The article of incorporation must include basic information about the corporation, such as its name, the number of shares it is authorized to issue, the name and address if its registered agent, and the name and address of each incorporator. Unless a delayed date is specified in the articles, the corporate existence begins when the articles of incorporation are filed.
To prevail on a claim of battery, a plaintiff must show what?
To prevail on a claim of battery, a plaintiff must show that the defendant caused a harmful or offensive contact with the plaintiff's person with the intent to cause such contact or the apprehension of such contact. A defendant's contact is intentional if he acts with the purpose of bringing about the contact or engages in an action knowing that contact is substantially certain to occur. In most jurisdictions, the defendant need only intend to cause contact, not that the contact be harmful or offensive.
In a divorce action, how does a plaintiff prevail on the ground of cruelty?
To prevail on the grounds of cruelty, the plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff's physical or mental condition. The conduct by the defendant must be serious and typically cannot be based on an isolated incident.
In a divorce action, how does a plaintiff prevail on the ground of habitual drunkenness?
To prevail on the grounds of habitual drunkenness, the plaintiff must show that it is the defendant's frequent habit of getting drunk that causes impairment in the marital relationship. The level and frequency of drinking to be shown by the plaintiff are more than an occasional level of intoxication.
For board approval, what must there be at the time of the vote?
Typically, the assent of a majority of the directors present at the time the vote takes place is necessary for board approval. However, the articles of incorporation or bylaws may specify a higher level of approval.
What are the implications on a gift, under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will?
Under common law, if a beneficiary died before the testator or before a point in time by which he was required to survive under the will, the gift failed and went to the residue unless the will provided for an alternate disposition. Today, almost all states have anti-lapse statutes that provide for the alternate disposition of lapsed gifts. Under the majority of the statutes, if the gift was made to a relation of the testator within a specific statutory degree, and the relation predeceased the testator but left issue, then the issue succeeds to the gift, unless the will expressly states the contrary.
What must a plaintiff prove under a strict products liability theory? Who may be liable for harm caused by the product?
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove (1) the product was defective, (2) the defect existed at the time the product left the defendant's control, and (3) the defect caused the plaintiff's injuries when the product was used in an intended or reasonably foreseeable way. A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test is whether the product conforms to the defendant's own specifications.
What is the Blockburger test?
Under the Blockburger test, each crime must require proof of an element that the other does not in order for each to be considered as a separate offense. The double jeopardy clause generally bars successive prosecutions greater and lesser included offenses. A lesser included offense is one that does not require proof of an element beyond those required by the greater offense.
Under the UCCJEA, a court has subject matter jurisdiction to preside over an initial custody determination if what? Can a court decline jurisdiction? In what circumstances?
Under the UCCJEA, a court has subject matter jurisdiction to preside over an initial custody determination if the state is the child's home state, meaning the child has lived with a parent or guardian in that state for at least six months prior to the filing of the action, or since birth, if the child is less than six months old. A court can decline jurisdiction if the party has wrongfully removed a child from another state.
What is the alternative causation doctrine?
Under the alternative causation doctrine, if the plaintiff's harm was caused by (1) one of a small number of defendants, (2) each of whose conduct was tortious, and (3) 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.
What is the "line of business" test?
Under the broader "line of business" test, the key is whether the opportunity is within the corporation's current or prospective line of business. Whether an opportunity satisfies this test frequently turns on how expansively the corporation's line of business is characterized.
What is involuntary manslaughter under the common law?
Under the common law, Involuntary Manslaughter is an unintentional homicide committed with criminal negligence or while engaged in an unlawful act. Criminal negligence is defined as grossly negligent conduct that puts another person at significant risk of serious bodily injury or death. It requires more than ordinary tort negligence, but less than the conduct required for depraved heart murder, which is defined as a killing that results from a reckless indifference to an unjustifiably high risk to human life.
Under the common law, what type of force is the non aggressor justified in using against another person?
Under the common law, one who is not the aggressor is justified in using reasonable force against another person to prevent imminent harm to herself. The harm to the defendant must be imminent, rather than a threat of future harm, and the person can only use as much force as is required to repel the attack.
What is the concert of action doctrine?
Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously cause the plaintiff's harm, then all the defendants will be held jointly and severally liable. Here, there is no evidence that the companies were acting together or tortiously. Thus, the man cannot recover under this theory.
What is the corporation by estoppel doctrine?
Under the corporation by estoppel doctrine, a person who deals with an entity as if it were a corporation is estopped from denying its existence and is thereby prevented from seeking the personal liability of the business owner. However, the business owner must have made a good-faith effort to comply with incorporation requirements and must lack knowledge that the requirements were met at the time the contract was entered into.
What is the de facto corporation doctrine
Under the de facto corporation doctrine, an owner must make a good-faith effort to comply with the incorporation requirements and must operate the business as a corporation without knowing that these requirements have not been met. If the owner has done so, then the business entity is treated as a de facto corporation, and the owner, as a de facto shareholder, is not personally liable for obligations incurred in the corporation's name.
What is the doctrine of divisible divorce?
Under the doctrine of divisible divorce, a court may have sufficient jurisdiction to grant a divorce but lacks such jurisdiction over other divorce-related matters such as property division, alimony, and child support. Thus, 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 other divorce-related matters without personal jurisdiction over both parties. If a court makes such a determination, the defendant can challenge the court's orders due to a lack of in personal jurisdiction.
What is the doctrine of merger (property law)
Under the doctrine of merger, an easement is terminated if the owner of the dominant or servient estate acquires fee title to the other estate; the easement is said to "merge" into the title. The easement is not automatically revived on the separation of the property into the previous dominant and servient estates.
What is the doctrine of 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 employment. The principal is liable even in the absence of tortious conduct by the principal. An employee acts within the scope of employment when either performing work assigned by the employer, or 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.
Under the majority rule for proximate causation, the plaintiff is required to suffer what?
Under the majority rule for proximate causation, the plaintiff is required to suffer a foreseeable harm that is not too remote and is within the risk created by the defendant's conduct. An intervening cause is a factual cause of the plaintiff's harm that contributes to her harm after the defendant's tortious act is completed. A superseding cause is any intervening cause that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm, thereby preventing the original defendant from being liable to the plaintiff.
What is the market share liability doctrine?
Under the market share liability doctrine, if the plaintiff's injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market the jury can apportion liability based on each defendant's share of the market.
What occurs when a tenant abandons a leasehold?
When a tenant abandons the leasehold, the landlord may treat the abandonment as an offer of surrender and accept such surrender, or the landlord may attempt to re-rent the premises on the tenant's behalf and hold the tenant liable for any deficiency. The majority of jurisdictions require that a landlord mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches the lease.
When is a de jure corporation formed?
When all of the statutory requirements for incorporation have been satisfied, a de jure corporation has been created. Consequently, the corporation, rather than persons associated with the corporation, is liable for activities undertaken by the corporation. However, when a corporation has not been created, the entity may be treated as a general partnership. A general partnership is an association of two or more persons to carry on a for-profit business as co-owners. In a general partnership, each partner is jointly and severally liable for all partnership obligations.
When can a person be liable for conducting business as a corporation?
When person conducts business as a corporation without attempting to comply with the statutory incorporation requirements, that person is liable for any obligations incurred in the name of the nonexistent corporation.
ratification occurs when a principal affirms a prior act that was done on the principal's behalf. The principal must: (4 things)
ratification occurs when a principal affirms a prior act that was done on the principal's behalf. The principal must (1) ratify the entire contract, (2) have legal capacity to ratify the transaction, (3) ratify in a timely manner, and (4) have knowledge of the material facts involved in the original act.
