ADML 2
Executive Power - Privilege
The President has executive privilege for presidential papers & conversations, but such privilege must yield to other important government interests.
Executive Power - Removal of Officers
The President may fire any executive branch official. Congress may limit the removal power only if 1. independence from the President is desired (e.g. special prosecutor); and 2. it can limit removal to where there is good cause shown.
Article 1 (2) of the UN Charter
The Purposes of the United Nations are, "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace." -codification of self-determination
Completing a contract form for real property has been prepare by and requiere by
The property owner is NOT considered "practicing law"
Substantive Due Process - Privacy Rights
The right to: 1. Marry 2. Procreate 3. Have custody of own child 4. Maintain extended family 5. Control upbringing of children 6. Purchase and use contraceptives 7. Abortion 8. Private consensual same-sex activity 9. Refuse medical treatment 10. Bear arms 11. Right to travel 12. Vote
Vendor
The seller
After a contract has been signed by both parties but before the title has passed to the buyer, the home is destroyed in a fire.
The seller will bear the loss
Signature: R2, § 134
The signature to a memorandum may be any symbol made or adopted with an intention, actual or apparent, to authenticate the writing as that of the signor. be prepared to argue what constitutes "sign": how far can I extend. sign doesn't mean "sign," but "authenticate the substance of the writing"
State
The state as a person of international law should possess the following qualifications: a) a permanent population b) a defined territory (part of terra firma) c) government, and d) capacity to enter into relations with other states. These are also the conditions that have to be meet in order to become a state.
In a residential lease with a "right of first refusal" provision:
The tenant has the right to match or better any offer the landlord receives to prevent the property from being sold to someone else
Under the captive trae practices act DTPA, if a real estate professional knowingly deceives a client,
Treble damages may be awarded to the injured party
Historical approach
Tries to understand the intent of the negotiators and the context in which the word was used.
Material Benefit Rule
an advantage gained by entering into a contract that is essential to the performance of the agreement and without which the contract would not have been entered into. RST 86 adopts.
A declaration
a statement giving notice of basic principles or policies, rather than a formal reservation derogating obligations stipulated under the treaty
an option is:
a unilateral contract
Unilateral K
a unilateral k is when one party commits herself to some performance if and only if the other party first 'accepts' by actually rendering his performance.
Posner (reliance), [minority]
a waiver is created when party that is seeking to have modification enforced relied on the modification. a seller can establish a waiver of NOM clause if it can show that it detrimentally relied on buyer's assurances.
parol Evidence Rule
a written contract embodies the complete agreement between the parties involved. The rule therefore generally forbids the introduction of extrinsic evidence (i.e., evidence of communications between the parties which is not contained in the language of the contract itself) which would change the terms of a later written contract.
A counteroffer is:
a) A rejection (b) A new offer (c) Able to be withdrawn prior to acceptance (d) All of the above D
Establishment Clause Cases Gropued into 3 Categories
a. Cases Unconnected to Financial Aid or Education b. Cases Involving Financial Benefits to Church Related Institutions c. Cases Concerning Religious Activites in Public Schools
Collateral Contract Rule
an agreement is not fully integrated if the parties have made a consistent additional agreement which is either agreed to for separate consideration or is "such a term as in the circumstances might naturally be omitted from the writings" (R2d '216(2)
Sovereignty
an essential concept in international law. what treaties define and discuss soveriegnty?
UN
an international organisation formed in 1945 with the aim of increasing political and economic cooperation among member countries
________ are changes that are made to the original contract, such as changes to the closing date or changes to the sales price, down payment and/or the amount financed.
amendments
A written history of all instruments and happenings that may affect title is called:
an abstract of title
RST2§58 (or 57)
an acceptance must be unequivocal and unqualified in order for a contract to be formed (Beastie Boys).
UCC §2-316(3)
as is" disclaimer- no conspicuousness requirement but most courts agree one should be implied to carry out section's purpose of not surprising buyers
a seller's disclosure notice is not required
at a foreclosure sale
Threat of criminal proceedings
attorney threat to institute criminal proceedings renders agreement unenforceable but may subject attorney to discipline
Article 38(1)(c) of the International Court's Statute
authorizing courts to draw upon general principles of law to fill gaps left by conventional and customary laws
conditions
circumstances that cause something to happen Provisions
when parties have purported to agree on a material term but left it indefinite
classical: Where you purport to agree but it is indefinite the agreement is void. modern rule: Agreement will be enforceable where parties have come up with an objective standard for determination ex: lease renewal
Customary Law
develops over time becomes the way to do something, not found in treaties. Practice and behaviour of states and becomes the way of doing things.
Real property conveyed by will is called a ________.
devise
How does the Convention on the Elimination of All Forms of Racial Discrimination define "Racial discrimination?"
discrimination occurring within "public life"
Memorandum rules
does the signature need to be on the same paper/linking docs? Minority rule- require that signed writing reference unsigned doc Majority rule- signed and unsigned writing can be read together as long as they clearly refer to same transaction -Crabtree v. Elizabeth Arden
goods
ident, as items sold under the contract
When Is Acceptance Effective [mailbox]: Lost Acceptance
if acceptance is properly dispatched, mailbox rule applies and acceptance is effective at time of dispatch even if it is lost and ever received by offeror. Though formation happens offeror will frequently be discharged from performance. RST2§63.
Mirror Image Rule [Classical Contract Law]
if an offeree's acceptance is not the mirror image of the offer it is essentially a counteroffer and not an acceptance so not valid contract - acceptance cannot add anything to the offer. (If say "I accept and..." then have rejected the offer)
UCC- NOM clause is ineffective
if it is contained on a form supplied by a merchant unless either (1) the party is also a merchant, or (2) the party has separately signed the NOM clause.[aka the non-merchant literally needs to initial right next to the clause]
Unilateral Mistake in Construction Bidding Case
if subcontractor mistakenly quotes to contractor, who relies in offer: Drennan [RST §45}: contractor is protected from revocation bc of reliance Florida Rule [Deprince Test]: party seeking to avoid must prove The mistake was induced by the party seeking to benefit from the mistake There is no negligence or want of due care on the part of the party seeking a return to the status quo Denial of release from the agreement would be inequitable, and The position of the opposing party has not so changed granting the relief would be unjust* DUTY TO READ? Can't unwind a unilateral mistake for failure to read without ambiguity, fraud or mutal mistake (Nauga v. Westel)
Invalidity of content
if the consent was there, but the content is breaching jus cogens → A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted.
Impossibility
if the person or thing necessary for performance dies, is incapacitated, damaged or destroyed the duty of performance is excused [RST §§262, 263] MUST SHOW LITERAL IMPOSSIBILITY [RST1§455] AKA objective impossibility no one can do it vs. subjective I cannot do it
Anticipatory repudiation may be rescinded
if the repudiation is retracted and notification of such retraction is given (1) before the other party materially relies on the repudiation or (2) indicates that he deems the repudiation to be final.
Frustration of Purpose
if unanticipated events destroy the mutually agreed upon subject matter or purpose of the agreement the parties will be excused from performing their duties under the K If buyer is clear about purpose of K, unwind if purpose is gone (Krell v. Henry) RST §265: if something frustrates purpose after K is signed, buyer can unwind unless language indicates otherwise must be: Principal purpose Substantial frustration Basic assumption in the event Even if possibility foreseeable can be a basic assumption
Duress
illegal coercion, threats or acts that have powerful influence which preclude a party from exercising free will [RST of Ks §492 (b)] Any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgement, if the threat was intended or should reasonably have been expected to operate as inducement
Dormant commerce clause test
undue burden- balance the degree of the burden against the importance of the state interest being promoted by the state law or action Check list: 1) Does the law discriminate against interstate commerce? 2) If not, does the law burden interstate commerce? How substantial is the burden? What is the purpose of the law? 3) Is the law's purpose important enough to justify the burden? 4) Is there a less burdensome alternative?
collective reprisal
under international law, the ability or obligation for all states to punish those who violate international law (as opposed to only those states whose rights were violated)
If a person has been judged to be incompetent, a contract is __________ because the person never had the capacity to enter into a contract in the first place.
void
During the period after a real estate sales contract is signes, but before title actually passes, the status of the contract is
Executory
Contract
Exist to make business matters more predictable
Good Faith RST2 §205
Extends the duty of good faith and fair dealing to every contract.
Option Contracts created by Consideration RST2§25
For an option to be binding, it must be supported by consideration given by the offeree.
Cronin
Moral hazard - we do things in a virtual world that we might not do in a physical world Almost too easy to use Enhances AQ propaganda and recruitment Lack of intel gathered
Core of Declaration of Human Rights according to Ignatieff
Moral individualism (as protection against totalitarianism)
Executive Power - War Powers
The President has broad powers as Commander-in-Chief to use American troops in foreign countries for any reason.
res judicata
"the thing has been decided"
Earnest money should be deposited with
Escrow agent within two business days
Implied term
"A major term in a contract, though not expressly agreed to considered to be essential to the performance of the contract"
The concept of "integration":
"A written document does not always represent a deal that the parties consider final. The writing may, for instance, be intended only as a tentative draft of their agreement. But if the parties do intend a document to represent the final expression of their agreement, the document is said to be an "integration" of their agreement. The parol evidence rule applies, as we shall see, only to documents which are integrations, i.e., final expressions of agreement.
Specific performance
"An remedy requiring the defendant to perform as promised under the contract; such as giving up real property, a service, or paying monetary damages."
The Conflict of Western European/US Values and East Asian Values in Human Rights
"Asian Model:" puts community and family ahead of individual rights and order ahead of democracy and individual freedom
Consideration
"Both the offeror and offeree must give or receive something of value (eg. goods, money, labor) as a result of the transaction."
David Hume argument against Lockean theory of political obligation
"Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires?"
Jus Cogens
"Compelling law" --modern form of natural law -Reaction to WWII -A norm thought to be so fundamental that it even invalidates rules drawn from treaty or custom -Usually a jus cogens norm presupposes an international public order sufficiently potent to control states that might otherwise establish contrary rules on a consensual basis
Death or destruction
"Death of the offeror or offeree, or the destruction of goods stated in the contract terms make the contract void."
Generally no Exemptions Required
"I cant cant conform!!" Um dont think so, Examples - a prohibiton against the use of peyote - denial of tax exempt status to schools that discriminate on the basis of race - requirement that employers comply with federal minimum wage laws - reuquirement that employers pay Social Security taxes - Sales and use taxes as applied to sales of goods and literature by religious groups
Counter-offer
"The offeree does not accept terms as offered, but proposes to amend those terms and enter in to a bargain thereon."
Capacity to contract
"The offeror and offeree must be over 18 years old, of sound mind and not bankrupt in order for the contract to be enforceable. The contract becomes voidable"
UCC
"Uniform Commercial Code"; governs sales of goods and contracts to sell goods in the future.
UCC definition of merchant
"a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction"
§90 of RST1
"a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise."
NO ORAL MODIFICATION CLAUSES [NOM] (UCC § 2209 (2)
"a signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party" must be separately signed
Oral promises to charities not covered
"charitable subscription" means a written promise to a charity, and the rule that no reliance needs to be shown for a charitable subscription is thus generally not held to apply to an oral promise to make a charitable gift
Acceptance by Silence (classical doctrine)
"he who is silent does not give his consent"
Intellectual Property
"the ownership interest in creations of a person's mind: patents, trademarks, copyrights, trade secrets, etc."
A ________ is the borrower's unconditional promise to repay the lender.
promissory note
A yearly tax bill is $2400 and has not been paid. The property has sold and closing is July 30th. How much will be owed at closing for taxes? (Use a 365-day year, round to the nearest dollar and the seller pays for closing day.)
$1,387
If the loan factor is $4.49 and the loan amount is $357,500, taxes are $7300/year and the insurance is $3103 per year, what is the monthly PITI payment?
$2,472.09
If the loan factor is $4.49 and the loan amount is $357,500, taxes are $7300/year and the insurance is $3103 per year, what is the monthly PITI payment?
$2,472.09 Rationale: $357,500 / 1000 = 537.5 357.5 x 4.49 = $1605.18 Loan Payment (P&I) $7300 / 12 = 608.33 Taxes (T) $3,103 / 12 = 258.58 Insurance (I) Total = $2,472
UCC SOF- Admissions Exception UCC 2201-(3)(b)
'common sense' argument that a party should not be liable to admit the making of a contract in a legal proceedings and yet avoid liability because of lack of a writing.
Where Restitution is Appropriate when Services are NOT Requested (RST of Restitution §116)
(1) Acted unofficiously and with intent to charge (2) Services were necessary to avoid serious bodily harm or pain (3) Had no reason to think recipient would not consent, if mentally competent (4) It was impossible to give consent or consent was immaterial due to mental incompetence
Indefiniteness
(1) Agreement to Agree Formal K Contemplated (2) Where parties have purported to agree on a material term but left it indefinite. (3) Where parties are silent as to a material term and (4) Agreement to Agree on a Material Term What to do if you want to Cure Indefiniteness: indefiniteness can be cured by the subsequent conduct of the parties or by the subsequent agreement of the parties.
MODIFICATION, RECESSION, & WAIVER (UCC § 2-209: )
(1) An agreement modifying a contract within this Article needs NO CONSIDERATION to be binding. (NO PRE-EXISTING DUTY) (2) A signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded, but except as between merchants such a requirement on a form supplied by the merchant must be separately signed by the other party. (REFERS TO NOM CLAUSE, READ WITH 2-209(4)) if the parties agree that any modifications must be in writing, then that provision will be enforceable under 2-209(2). This creates a Private Statute of Frauds re: future modifications. (3) The requirements of the Statute of Frauds section of this Article (Section 2-201) must be satisfied if the contract as modified is within its provisions. (4) Although an attempt at modification or rescission does not satisfy the requirements of subsection (2) or (3), it can operate as a waiver. even if the contract contains a NOM clause, under certain circumstances we can waive the clause and accept oral modifications (5) A party who has made a waiver affecting an executory portion of the contract may retract the waiver by reasonable notification received by the other party that strict performance will be required of any term waived, unless the retraction would be unjust in view of a material change of position in reliance on the waiver. [promissory estoppel in a way. Connect this to RST§89
exceptions to adequacy of consideration
(1) Court will review equivalence of exchange under doctrine of unconscionability (2) Fairness of lawyers fees (3) When equitable relief such as specific performance is sought, detriment's inadequacy will be considered (4) Inadequacy might be evidence that detriment was not truly bargained for or may be evidence of fraud or other bad thing.
RST§110 Classes of K's Covered Under SOF
(1) Marriage (2) Year: requires a K to be in writing ONLY WHEN it cannot be performed within 1 year. [aka if a promise contained in a contract is incapable of being fully performed within one year, it must be in writing.] RST2§30. Majority - NOT subject to SOF f it is possible to be performed within one year K's of infinite duration not subject to SOF[majority] Freedman v. Chemical Construction Corp. Termination vs. performance: The fact that a contract may be terminated within a year is not sufficient to remove the contract from the requirements of the statute; only performance will do. (Without this distinction, the one-year provision of the statute of frauds would be judicially negated because any contract can be terminated within one year due to breach.) (3) Land (4) Executor (5) Surety (guarantee of another's loan) (6) Goods over $5K (UCC only, see below)
determining the materiality of a failure to fully perform a promise (suggestive factors, NOT BINDING)
(1) The extent to which the injured party will obtain the substantial benefit which he could have reasonably anticipated (2) The extent to which the injured party may be adequately compensated in damages for lack of complete performance (4) The extent to which the party failing to perform has already partly performed or made preparations for the performance (5) The greater or less hardship on the party failing to perform in terminating the contract (6) The willful, negligent or innocent behavior of the party failing to perform the greater or less uncertainty that the party failing to perform will perform the remainder of the K
RST (Second) §253(1) Effect of a Repudiation as a Breach and on Other Party's Duties
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.
exceptions to PER
(1) agreement is not final (not integrated) (2) agreement is incomplete (partially integrated) use PE to supplement (3) agreement is ambiguous (multiple meanings) use PE to interpret meaning (4) agreement is invalid use PE to show lack of consideration, duress, fraud, etc. NOTE: court can probably look at PE to determine how integrated the K is NOTE: default rule, can be contracted around also, by merger/integration clause
Fraud by silence/ fraudulent non-disclosure
(1) d had knowledge of material facts the p did not have and could not have discovered by the exercise of reasonable diligence (2) d was under an obligation to communicate the material facts to the p (3)d intentionally failed to communicate material facts to p (4) p justifiably relied upon the d to communicate the material facts to the p (5) p sustained damages as a result of ds failure to communicate material facts to p
Fraudulent Inducement:
(1) d made false representations as a statement of existing and material fact (2) d knew the representations to be false or made them recklessly without knowledge concerning them (3) d made the representation intentionally for the purpose of inducing another party to act upon them (4) the other part reasonably relied and acted upon the representations (5) the other party sustained damages by relying upon the representations
Promissory Restitution
(exception to past consideration doctrine) Majority Rule: A moral obligation is not sufficient consideration for a promise. There must be some other preexisting obligation which will suffice as consideration. (Mills v. Wyman) Minority Rule: moral obligation is a sufficient consideration to support a subsequent promise to pay where the promisor has received a material benefit—although there was no original duty or liability resting on the promisor (Webb v. McGowin)
exceptions to advertisement as not an offer
(1) if there is a particular number of units to sell or they will be sold in a particular manner, there may be an offer. Lefkowitz v. Great Minneapolis Surplus Store: Mink coat case (2) If an offer is conveyed by the objective reading of an advertisement, it does not matter that the advertiser may subjectively not intended it to constitute a binding offer (Izadi) (3) Unilateral advertisements have been held to constitute offers where they invite the performance of a specific act without further communication and leave nothing for negotiation. [Sateriale v. Reynolds]
3 factors of the predominant purpose test
(1) language of the K, (2) the nature of the business of the supplier and (3) the intrinsic worth of the materials. [language of K is least important factor]
Option contract cannot be terminated by
(1) revocation (2) death of offeror / offeree (3) rejection [modern view]
Counter Offer RST2§39
(1) same matter as the original offer but proposing a substituted bargain (2) An offeree's power of acceptance is terminated by his making of a counteroffer, unless the offeror has manifested a contrary intention or unless the counteroffer manifests a contrary intention of the offeree.
How usage of trade evidence can be allowed to modify a contract:
(1) the courts must allow a check on usage evidence by demanding that it be sufficiently definite and widespread to prevent unilateral post-hoc revision of contract terms by one party (2) Code requirements for providing a usage are "far less stringent." A usage of trade need not be well known, let along universal. It only needs to be regular enough that the parties expect it to be observed. (3) It is not necessary for both parties to be consciously aware of the trade usage. It is enough if the trade usage is such as to justify an expectation" of its observance (Summers
Elements of a cause of action for a quasi-contract/restitution:
(1) Π has conferred benefit on Δ (with reasonable expectation of being paid) (2) Δ has knowledge of benefit (3) Δ has accepted or retained the benefit conferred (4) Circumstances are such that it would be inequitable for Δ to retain the benefit without paying fair value for it
Question 3: Does This Fall Within One of the Exceptions to SOF that Permits Enforcement Despite Non-Compliance
(1)Partial Performance Exception (2) Special Manufacture (3) Admissions Exception (4) Confirmation Between Merchant Exception (5) Promissory Estoppel Exception
Shrinkwrap
(Dell): The modern trend is to place the power of acceptance with the consumer, after he or she receives goods containing a standard form statement of additional terms and conditions, provided the buyer retains the power to accept or return the product. [Easterbrook]
Limited amount of time to sign a multilateral treaty.
(Ex Rome statute could be signed from 1998 to 2000, but Palestine didn't hand in an instrument of accession until 2015)
Clickwrap
(Hines v. Overstock) Standard contract terms contained in a website or software and set up in a way that requires the user of the site or software to access the terms and to signify assent to them, usually by action such as clicking an "I agree" button before submitting order terms may be on the web page itself, found by clicking on a link, or in a pop-up window. analogous to a buyer signing a written standard form contract: terms are available at the time of contracting, and the buyer has a duty to read them. A clickwrap term may also be embedded in software that the buyer has purchased, either by downloading it or by buying a disk containing it. If the clickwrap term is in the software itself, the term may not have been available to the buyer at the time of sale. If that is so, it is similar in character to, and should be approached in the same way as a shrinkwrap.
Unconscion + Fraud
(Quicken Loans- quicken had committed fraud, and resulting loan was unconscionable) You will not always be able to deploy both together, BUT TRY
Texas Veteran's Housing Assistance Program loans can be:
(a) FHA (b) VA (c) Conventional (d) Any of the above D
The Special Provisions paragraph of the contract allows license holders to insert:
(a) Factual business details (b) Statements not addressed in the contract (c) Information for which there is no TREC promulgated addendum, lease or mandatory form (d) All of the above Correct answer: d
For tax prorations
(a) If taxes are not paid at or prior to closing the buyer shall pay for the current year (b) If taxes for the current year vary from the amount prorated at closing, the parties shall adjust the prorations when tax statements for the current year are available (c) The tax proration may be calculated taking into consideration any change in the exemptions that will affect the current year's taxes (d) All of the above D
An offer by a prospective purchaser can be terminated prior to acceptance due to:
(a) expiration of a specified time period (b) bankruptcy of either party (c) a change in the law that renders the contract illegal (d) all of the above D
Exceptions to Parol Evidence Rule (RST 2d 214). Evidence is admissible to establish:
(a) whether the writing is an integrated agreement ('214(a) (b) whether the integration is complete or partial ('214(b)) (c) the meaning of ambiguous terms (or trade usage applied to otherwise clear terms) in the K ('214(c)) Some cts have stretched the doctrine to allow evidence to show that the plain words of the K are ambiguous. If they find ambiguity, they will then apply the same evidence to interpret the ambiguity However, other cts have held that if the terms are unambiguous, then evidence cannot be admitted (Hershon) (d) illegality, incapacity, fraud, duress, mistake, or other invalidating cause ('214(d)) for defenses, usually only applies to substantive uncon and sometimes mistake (e) ground for granting or denying rescission, reformation, specific performance, or other remedy ('214(e)) usually used to show that term was excluded because of clerical error - need clear and convincing evidence that term was meant to be included by both parties (f) the existence of collateral agreements - an agreement is not fully integrated if the parties have made a consistent additional agreement which is either agreed to for separate consideration or is "such a term as in the circumstances might naturally be omitted from the writings" (R2d '216(2)) (g) subsequent modifications to the K (look at modification rules)
1st Amend. - Speech: Designated Public Forums
- Gov't properties that are chosen to be left open to speech (school facilities). - Same rules as public forums
Relative effect of treaties
(res inter alios acta aliis nec nocet nec prodest → "a thing done between others does not harm or benefit others) A treaty cannot impose obligations on a state that isn't party to the treaty.
Three types of treaty making processes within the US
- Art. II - Congressional Executive - Sole Executive
Jus ad Bellum and Jus in Bello together
- Do not seek to eliminate war, but rather to restraint its destruction - If actions are morally justifiable - Comprise "just war" theory -Require us to make judgements about morality in war
Problems with the regulatory framework for the protection of the environment
- Few general legal principles have evolved in international environmental law - Few customary rules have arisen compared to other areas of international law - Most problems have been regulated through non-binding resolutions and declarations - so called 'soft law', with no real pressure on parties. - There are no real judicial measures to deal with non-compliance. Supervisory and preventative mechanisms are used instead
1st Amend. - Speech: Limited Public Forums
- Properties that are limited to certain groups or dedicated to some subject - Regulation must be reasonably related to purpose and viewpoint neutral
Geneva Convention I (1864)
-Protects wounded and sick soldiers on land during war -Has universal adherence because protocols are based on reciprocity (every country is party)
Probability of Success (Jus ad Bellum)
-A calculation of the probability that the use of force will restore just peace -Idea of barring violence that is known in advance to be futile -Not codified in IL
What is the Human Rights Report according to Mutua?
-A catalogue of abuses committed by the state against liberal values -Mutua believes its purpose is to shame the third world state by pointing out the gulf between the state's conduct and internationally sanctioned civilized behavior
China's Charter Recommendations
-A new constitution -Separation of powers -Legislative Democracy -An Independent Judiciary -Public control of military (nonpartisan) -Guarantee of Human Rights, abolishment of "education through labor" -Election of Public Officials -Rural-urban Equality (abolishment of two-tier household registry system) -Freedom to Form Groups (should not need government approval) -Freedom to Assemble -Freedom of Expression + Freedom of Press (End practice of viewing words as crimes) -Freedom of religion (no gov. approval) -Civic Education (No partisan education) -Free markets and protection of private property, including privatizing state enterprises and land. -Financial and tax reform. -Social security. -Protection of the environment. -A federated republic. -Truth in reconciliation
Recognition
-A state will attribute certain rights and privileges to the state it is recognizing -Authoritative statement issued by a competent foreign policy maker of a state Predates IR states system - recognition used during Middle Ages for different monarchies -States saying that another state has met the 4 criteria and now will hold that state accountable to IL -No international legal obligation exists to recognize a state (not obligated even if state meets all 4 Montevideo criteria)
UN Convention Against Torture
-All parties must also pass domestic legislation that criminalizes torture, because then even states that want out of IL still have to comply with their own DL US domestic version = 18 USC 2340
First Bybee Memo: August 2002
-Analysis of allowable standards -Acts may be cruel, inhumane, degrading, but still not meet threshold in 2340 for torture -Yoo's definition = must inflict pain that is extreme (serious organ failure or death) or psychological suffering resulting in significant harm and duration
Comparison between preventive war and preemptive war
-Both forms of "better now than later" logic -Reflect different attacks, different time horizons, implicate different strategic responses Timing - future (preventive) vs. imminent (preemptive) Source of threat - forstall creation of new military asset (preventive) vs. forstall mobilization of already existing military asset (preemptive) Consequences of failure for act - eventual degradation of your relative military power (preventive) vs. attack (preemptive)
Proportionality (Jus in Bello)
-Combatants must deploy proportionate force against legitimate targets -Is the force you are using proportional to the damage you suffered? -Codification: Article 51(5)b 1977 Geneva Protocol I: Attacks are to be considered as indiscriminate... "which would be excessive in relation to the concrete and direct military advantage anticipated." -States must decide if force they're using is proportional to the harm they suffered -Central concept of ad bellum AND in bello
Discrimination (Jus in Bello)
-Combatants must make every effort to discriminate between legitimate and illegitimate targets -Legitimate target = anyone or anything actively engaged in harming - Anything else is ethically immune from attack (civilians, hospitals, places of worship, cultural sites); may not be targeted unless involved in military purposes -Under no circumstances is the direct (intentional) application of force against noncombatant targets allowed -Codification: Article 52(2) 1977 Geneva Protocol I: "Attacks shall be limited strictly to military objectives."
International Commission on Intervention and State Sovereignty
-Commission founded Sept. 2000, supported under authority of Canada and other members -Establish clear rules, procedures, and criteria of humanitarian intervention, especially those related to the decision to intervene, its timing, and its modalities -Address the root causes of conflict and advance the prospects for long-term peace
Last Resort (Jus ad Bellum)
-Diplomatic attempts have been made and have failed -Codification: Article 2(4) of the UN Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." -Codification: Chapter 6 (Articles 33-38) of the UN Charter -Sufficient nonviolent attempts have been made and failed -Conflict should be resolved peacefully when possibly
Common Article 3 of the 1949 Geneva Conventions
-Establishes fundamental rules from which no derogation is permitted -All persons are entitled to, at a minimum, Common Article 3 standards -Prohibits violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture, taking hostages, outrages upon personal dignity, in particular, humiliating and degrading treatment -Present in all four Geneva Conventions -Applies to situations of a non-international character
Preventive War
-Fighting a winning war now in order to avoid the risk of war later under less favorable circumstances -Prevention is a response to a future threat rather than an immediate threat -Better to fight war now with strategic advantages than later under less desirable circumstances -Classic case of preventive warfare: Israel 1981 - successful air strike on Osirak near Baghdad Israel claimed self-defense because nuclear weapons would have ultimately been used against Israel, even though the reactor was not yet operational UNSC - illegal because does not meet Caroline conditions -Essentially any preventive war is illegal under Caroline standards
Waldron Argument for Socioeconomic Rights
-First generation rights are predicated on some notion of respect and human dignity. People are to be treated not as captives in the land where they live, but as free and equal members of a community. Is neglect of their social or economic predicament consonant with that respect? -Some degree of neglect is consistent with respect for autonomy and freedom of an individual
De jure recognition
-Formal and explicit acceptance of the existence of a state -In law -Full legal personality -Sometimes recognizing state will issue statement, enter a treaty, welcome an ambassador, create an embassy, etc.
China's Charter 08 Fundamental Principles
-Freedom -Human Rights -Equality -Republicanism -Democracy -Constitutional Rule
Traditional/Classical/liberty Rights
-Freedom from the interference of others -Concerned with processes
Filartiga v. Pena-Irala
-General principles used for substantiating proofs of customary international law -Judge Kaufman, after reviewing the prohibition of torture by various international conventions, noted a survey that showed that torture had been banned in over 55 national constitutions -This comparative study was then accumulated, along with treaties, state practice, and opinions of judges and publicists, to prove a rule of customary international law prohibiting torture
Origins of modern Human Rights
-Great 20th century Evils: nazism, fascism, total war, and racialism -Increased belief in, or demand for, equality among men -Creation of UN: Human Rights=central task
Historical perspective on international legal person vs. modern perspective
-Historical view that only sovereign states could be international legal persons (still the primary subject and the state still comprises the foundation of the international political system) -Now also supranational institutions, corporations, NGOs, individuals
Case for the legality of NATO intervention
-If UN cannot protect you from invasion (state sovereignty), then what can it do? -Article 7 - people have a right to self-determination -Preamble to the UNC - the UN is for people, not states -If the 6 jus ad bellum criteria were met, then legal Veto system in the UN prevented them from intervening when they should have (UN was complicit in bloodshed) -Milosevic was a repeat offender of IL, would not comply -Kofi Annan - if a regime is abusing its citizens, the international community has a responsibility and implicit right to protect
Preemptive War
-Initiation of military action because it is perceived that the adversary's military attack is imminent and there are advantages of striking first -Classic case of preemptive warfare: 6 Day War (1967) - Israel attack against United Arabic Republic in reaction to rapid mobilization of UAR troops on their border
Self-Determination Rule of Intervention
-It is permissible for an outside state to provide assistance to the side in a civil conflict that is seeking self-determination of peoples -Either the government or the rebels can be aided -Difficulties: cannot be contained, what happens next, what constitutes a group seeking self-determination
Neutral Non-Intervention Rule of Intervention
-It is permissible to aid a regime at its request when there is a low level of civil strife -It is impermissible to aid a regime at its request if there is a full-scale insurgency -It is always impermissible to provide assistance to the rebels -If there is no serious challenge to the government (low level strife = usually strikes/riots), there's no squash to self-determination -Difficulties: lines of strike levels are blurry, pulling out is difficult, still problems with helping insurgents
The Traditional Rule of Intervention
-It is permissible to provide assistance to a widely recognized government at its request -Outside states are prohibited from providing assistance to the rebels no matter how just their cause may appear -Privileges the government -Difficulties: detrimental to self-determination -No longer a dominant approach to assistance
Case of illegality of NATO intervention
-Mass casualties of civilians (against jus in bello) -Article 2(4) - all members shall refrain from threat or use of force
General principles of law
-Most frequently relied upon nontreaty, noncustomary source of international law -"general principles recognized by civilized nations" -most usual approach to general principles of law relies upon techniques of comparative law (Basic notion-gen princ. Of law is some proposition of law so fundamental that it is found in virtually every legal system -Rarely used to reverse or modify existing rules of international law
International Committee of the Red Cross
-Organization convened first in 1864 because of widespread neglect of soldiers in the Franco-Austria War 1) First idea - creation of relief societies in each state that care for sick and wounded regardless of nationality 2) Second idea - legal basis is needed to obligate militaries to care for all wounded Formed the First Geneva Convention in 1864 1899 - expands care to those injured at sea 1929 - includes POWs
Kellogg-Briand Pact (1928)
-Outlawed the resort to war entirely -Condemned the recourse to war for the solution to international conflict completely (outlawed it) -Renounced war as a tool of foreign policy -Technically still in force (Why? Because WWII made it practically meaningless anyway, also because it's woven into the UNC anyway)
Gonzales Memo: January 2002
-Policy question of extending Geneva -Should not extend because it would allow the US to preserve flexibility in this new war on terror
League of Nations (1919)
-Procedures established to restrict the recourse to force -Emerged as a result of the Paris Peace Conference to ensure that a war like WWI does not happen again -Imposed a 3 month "cooling off" period before going to war
Geneva Conventions IV
-Protections to civilians during times of war -Framers intended that no person can fall outside of the four conventions
Aggressive Interrogation Techniques (10/11/2002)
-Rescinded 01/2003 but it was still on the books for a short time and was used as such until pushback from DOD members (especially from the military - what will happen to us?) Category I-Yelling, deception, employing more than one interrogator, or recognizing the interrogator as a citizen of a country known for harsh tactics Category II-Stress positions "for a maximum of four hours," isolation for up to 30 days, the use of false documents, hooding, sensory deprivation, forced grooming, nudity, 20 hour long interrogations, removal of all comfort items (including religious material), and the use of individual phobias to induce stress Category III-Exposure to cold weather or water; the use of scenarios to convince the detainee that death is imminent for himself or his family; grabbing, poking, and light pushing; and the use of a wet towel to induce the feeling of suffocation, or waterboarding
Welfare Rights (Socioeconomic Rights)
-Rights to Goods -Concerned with outcome -Impose on other human beings some measure of responsibility
opinio juris
-Rule of customary international law which may be applied to current problems -legal obligation
7 October 2001: Operation Enduring Freedom
-Started with an aerial campaign against AQ and Taliban -27 different states involved -Brought up questions of how to threat captures of AQ and Taliban -Full compliance of Geneva was assumed because US has never denied Geneva
Just Cause (Jus ad Bellum)
-States can defend themselves with force if they are the victims of an armed attack -Codification: Self-defense clause-Article 51 of the UN Charter: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations..." -Now recognized as jus cogens
Challenges of Recognition
-Territorial disputes -Displaced peoples -Displeasing allies (Russia condemning US recognition of Kosovo) -1990s breakup of USSR: difficult to discern who to/not to recognize
Executive Power - Impeachment and Removal
-The President, VP, federal judges and all officers of the U.S. can be impeached and removed from the office for treason, bribery, high crimes, & misdemeanors. 1. Impeachment requires majority of the house 2. Removal requires 2/3 of the Senate
Jus in Bello
-The means states adopt for fighting -How the war may legitimately be fought -Responsibility of military commanders
Jus ad Bellum
-The reasons states adopt for fighting -The legal permissibility of decision to go to war -Responsibility of political leaders
Self-Determination
-The right of people to determine whether they should be constituted as a state -Is a right, codified in many conventions and treaties, accepted as both treaty law and CIL
Proportionality (Jus ad Bellum)
-The state considering just war must weigh the expected universal (not just national) benefits of the action versus the expected universal costs -Codification: Hague Convention III (1907) -Good must outweigh or at least be equivalent to the pain and destruction caused by war
Public Declaration by Proper Authority (Jus Ad Bellum)
-The use of force must be legitimized by an official agent of a sovereign entity -Codification: Hague Convention III (1907): "The contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a declaration of war, giving reasons, or of an ultimatum with conditional declaration of war."
Right Intention (Jus ad Bellum)
-The war can only be intended for just reasons -It can only be intended for the restoration of the just peace (not territorial gains, malice, etc.) -Not codified in IL
Objections to Social and Economic Rights
-Totally impossible to translate into positive rights by analogous political and legal action
sources of international law
-Treaties and conventions -Internat. custom -General principles of law -Actions of international courts and other orgs -Writings of legal scholars/authorities
History of POW Treatment
-Uniquely American norm -Originated in US context - Revolutionary War Washington order to treat Hessians humanely Why? Reciprocity, send a message that the US was different -US was the first state to have a military code on how to treat POWs Lieber Code - how to treat confederates without giving them legitimacy, deserve to be treated with humanity/civility -Set example for France, Prussia, Russia, Hague Conventions, Geneva Conventions
Second Bybee Memo: August 2002
-What specifically can be do to Abu Zubaydah -Zubaydah caught March 2002, first person caught in five months -Believed to have wrote Manchester Manual on how to resist torture -10 torture techniques analyzed, none amounted to torture
De facto recognition
-Within a given territory, the requirements for statehood are met, without necessarily having any further diplomatic ties between the two countries -In practice -Recognizes a state within the most limited capacity -Rare Ex: Cold War - US issued de facto recognition of Soviet Union
"Give War a Chance" by Edward Luttwak
-less destruction to just let competing actors fight it out than to intervene and elongate a conflict -Ex: In Syria, better to like Assad and ISIS kill each other
Core of IHL (3 items)
1) 1949 Geneva Conventions - forms basis for LOAC 2) 1977 Additional Protocols to the Geneva Conventions 3) International Committee of the Red Cross - mandated to protect victims of warfare
Requirements for becoming an international law
-practice must have become more or less uniform (+ extensive) -practice should be consistent, but need not be unanimous -doesn't have to be ancient -
Uses of Force Short of War (two)
1) Reprisals - an action that a state undertakes to redress an injury suffered during a time of peace 2) Permissible self-defense - protective action aimed at another use of force short of war (The Caroline)
Last Shot Rule [Classical Doctrine]-
. (mere performance is assent to all terms in the counter offer) A party impliedly assented to and thereby accepted a counter-offer by conduct indicating lack of objection to it. [usually favors seller] Princess Cruises. &RST2§19
Religious Oaths for Governmental Jobs Prohibited
...
States May not Exclude Cleries from Public Office
...
The only two peace enforcement missions
1) 1950 Korea - NK invaded SK (believed it had support of China, but did not) US brings complaints to SC Res. 82 - vote 9-0, condemning NK's actions as illegal Res. 83 - armed attack on SK was a breach of peace and members should assist in combating it Peace Enforcement mission authorized from 1950-1953 2) Iraq - invaded Kuwait in 1990 because believed that UK restricted access to water via borders, Hussein believed it was their rightful territory Res. 660 - unanimous (14-0, Yemen abstained), demands Iraq withdraw immediately Res. 678 - called for Iraq to comply with all previous resolutions, gives them until January 1991 to comply and withdraw, intends to use all necessary means to uphold 660 Res. 687 - Post-war, Iraq must comply with all previous resolutions Military force commences under this resolution in 1991
1933 Montevideo Convention, Article 1 (four criteria for statehood)
1) A permanent population 2) A defined territory (includes Jessup Test - argued that Israel should still be a state regardless of unsettled borders, cannot be a "disembodied spirit" but does not need to be 100% defined) 3) A government 4) Capacity to enter into relations with other states
Prof. Mayhew's Reasonable Expectations Test:
1) Adhesion K: so far only applies to insurance Ks 2)Ambiguity in language will be interpreted in light of the objective reasonable expectations of average insured 3)Reasonable expectations will be applied when insured didn't get full and adequate notification And provision is unusual or unexpected Policy provision effectively emasculates the apparent coverage 4) There must be actions by insurer to create objective impression that some activity will be covered 5) There must be reasonable reliance on the K by the insured
How much process is due for procedural due process
1) Are common law safeguards adequate to protect the right, or is additional process needed? 2) Is a pre-depreivation hearing necessary to provide a check against some substantial loss to the individual? 3) Will the requested procedures substantially reduce the risk of an erroneous deprivation of a right? 4) Has there been a historian incidence of abuse of these rights?
3 criteria for peace enforcement missions of UNC Article 42
1) Determination of aggression - has to exist 2) Identification of guilty party - who did it 3) Contribution of forces by states - essentially taking sides
Two Jus in Bello Standards
1) Discrimination 2) Proportionality Together, referred to ask IHL
Four exceptions to UN Charter 2(4) proscription of the use of force
1) Force used in self-defense 2) Force authorized by the UN Security Council 3) Force undertaken by the five major powers before the Security Council was functional 4) Force undertaken against the "enemy" states of the Second World War
3 Principles of Peacekeeping Missions (not codified, norms around peacekeeping)
1) Host government request and consent - parties have agreed to stop fighting and accept the presence of peacekeepers there 2) Use of force only in self-defense - blue helmets idea 3)Personnel should be neutral and impartial as to the substance of the conflict - no prejudice
Strict scrutiny test
1) Is there a compelling governmental interest? 2) Is narrowly drawn so as to accomplish the compelling governmental interest with as little interference as possible
Grotius/Contemporary Just War Theory (6 requirements for Jus ad Bellum)
1) Just cause 2) Right Intention 3) Public declaration by proper authority 4) Last resort 5) Probability of Success 6) Proportionality
Three US objections to the 1977 Additional Protocols
1) Objection to Protocol I, Article I, Section IV - broadens the definition of "conflict" 2) Objection to Article 43 - what constitutes an "armed force" Relaxes fixed emblem standard (1 - fixed emblem, 2 - carry arms openly, 3 - forces must be commanded by a superior, 4 - follow laws of war) Can potentially be applied to terrorists, guerilla actors, mercenaries 3) Objection to Article 44 - violations of IL do not take away a combatant's rights or POW rights Even if you don't obey the laws of war, you are still entitled to these rights
Procedural due process
1) Presence of state action 2) An adverse effect on a recognized liberty or property interest 3) notice and meaningful opportunity to be heard
Means of Testing Human Rights (Cranston)
1) Readily secured by legislation? 2) Genuinely universal? 3) Paramount importance? (e.g. It is of paramount importance to relieve great distress, but it is not a paramount duty to give pleasure.)
6 criteria for R2P intervention
1) Right authority - must be UN 2) Just cause - "exceptional and extraordinary" Only two events can trigger RSP - large scale loss of life and ethnic cleansing 3) Right intention - limited to the alleviation of acute human suffering 4) Last resort - extraordinary, compromise has failed 5) Proportional means - goal is minimalism (scaled, duration) 6) Reasonable prospects of success - tangible chance of stopping atrocities, cannot aggregate crisis
3 conditions of the geopolitical climate of the 1990s that allowed R2P to grow
1) The end of the Cold War - R2P would have been impossible during Cold War because of fear of a Soviet veto 2) The dynamics of globalization - literal walls coming down, beliefs of civil society, increase in communications technology, belief in good governance, increase in global consciousness and NGOs 3) Kofi Annan at the helm of the United Nations - SecGen in '97, wanted to incorporation human rights advocacy into every facet of the UN
Takings clause test
1) Was there a taking? 2) Was the taking for a public purpose? 3) Was the landowner justly compensated?
RST (Second) §251 When a Failure to Give Assurance May Be Treated as a Repudiation
1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance. (2) The obligee may treat as a repudiation the obligor's failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case.
Test for obscenity
1) Work must be such that the "average person applying contemporary community standards" would find that, as a whole, it appeals to the prurient interests. 2) The work depicts or describes, a patently offensive way, sexual conduct specifically defined by state law 3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Suspect classification analysis
1) classifications that are facially discriminatory 2) classifications that are discriminatory in the application (or have a discriminatory impact) 3) classifications that have a discriminatory motive
Free speech test for lawless conduct
1) directed to imminent lawless action 2) likely to incite or produce such action
Time, place and manner test in public places
1) must not be thinly-veiled content restrictions 2) must be no greater than necessary to achieve a government's stated purpose
Factors courts use for affirmative action
1) whether the plan has flexible goals 2) whether the plan is temporary 3) whether the plan is access bearing to other groups. Plans that are flexible, temporary, and non-access bearing will likely pass the test
5 conditions under which we recognize a state
1)Break up of some existing state (Yugoslavia, USSR) 2) Secession (Eritrea from Ethiopia (1993), Kosovo from Serbia (2008), South Sudan (2011)) 3) Foreign control over that state previously exercised by a different state (US and Palau) 4) States have merged (Germany (1990), Egypt and Syria) 5) Special states under IL (Taiwan and Palestine)
If the loan factor is $5.53 on a $200,000 loan, taxes are $2400/year and insurance is $1800/year, what is the monthly PITI payment?
1,456
RESPA regulates closings on:
1-4 family residential properties with federally related financing
Individual Liberties - Statutes & Private Conduct
1. 13th Amend. prohibits slavery (irrespective of gov't/private action) & pursuant statutes prohibit private race discrimination. 2. Under commerce clause, Congress can regulate private conduct (e.g. Civil Rights act of 1964). 3. 4th Amend. can be used to regulate state and local governments
Equal Protection - Const. Provisions
1. 14th Amend. applies only to state and local governments. 2. Federal government liable under the due process clause of the 5th Amend.
Element of a Contract
1. An agreement (through offer & acceptance), 2. Consideration, 3. Contractual Capacity; 4. Legality, 5. Genuine Consent, 6. Writing (if necessary under the Statute of Frauds)
Individual Liberties - Application of Bill of Rights
1. Applies directly only to the Federal Gov't 2. Applies to state and local governments through its incorporation into the due process clause of the 14th Amend.
Executive Power - Domestic Affairs
1. Appointment & Removal 2. Impeachment and removal 3. Presidential Immunity 4. Executive Privilege 5. Pardons
Executive Power - Appointment of Officers
1. Appointment - President appoints ambassadors, federal judges, and cabinet officers and the Senate must confirm them. 2. Congress may vest the appointment of INFERIOR officers in the President, heads of departments, or lower federal courts.
Equal Protection - Steps
1. Classification 2. Level of scrutiny 3. Does the law meet the level of scrutiny?
Equal Protection - Existence of Racial Classification
1. Classification exists on the FACE OF THE LAW. 2. If the law is race neutral then P must demonstrate a. discriminatory impact AND b. intent
Remedies for Breach of Contract
1. Compensation 2. Specific performance 3. Rescind the contract
Individual Liberties - Government Action
1. Const. applies only to government action, not private conduct. 2. Congress can enact statutes to regulate private conduct. 3. Exceptions
1st Amend. - Speech: Court Orders
1. Court orders restricting speech must meet strict scrutiny a. Procedurally proper gag order must be complied with until it is vacated or overturned b. Person who violates gag order is barred from challenging it. c. Gag orders on the press to prevent prejudicial pretrial publicity are not allowed.
Two central forms of international law
1. Customary international law 2. Treaty law
Supreme Court Review - Original & Exclusive Jurisdiction
1. Decisions by three-judge federal district court panels 2. Suits between state governments
Requirements of Statehood
1. Defined territory 2. Permanent population 3. Government 4. Capacity to enter into relations with other states 5. Independence
Justiciability Requirements
1. Standing 2. Ripeness 3. Mootness 4. No Political Questions
Substantive Due Process
1. Economic rights - rational basis 2. Property rights - 5th Amendment takings clause 3. Contract rights 4. Privacy
Federal Courts - Sovereign Immunity Exceptions
1. Express consent/waiver of immunity 2. Section 5, 14th Amend. 3. Feds v. State 4. Bankruptcy proceedings
Equal Protection - Gender Classifications
1. Face of the law 2. If the law is neutral on its face, then P must prove a. Discriminatory impact, AND b. discriminatory intent.
Executive Power
1. Foreign Policy 2. Domestic Affairs
Equal Protection - Benefiting Women
1. Gender classifications benefiting women based on STEREOTYPES will not be allowed (strict scrutiny). 2. Classifications that are designed to remedy past discrimination will be allowed.
Hierarchy in International Law
1. Jus Cogens (Peremptory Norms) 2. Treaty-Custom: lasting-time rule; Is there a piece of paper? Custom: is there a practice? 3. Municipal Law
Termination of an Offer
1. Lapse of time 2. Rejection of the offer 3. Offer revoked
Legality
1. Legality of form 2. Legality of purpose
Procedural Due Process - Takings
1. Life (self explanatory) 2. Liberty - significant Const. freedom 3. Property
Executive Power - Treaties & Conflict of Laws.
1. State laws that conflict with treaties are INVALID. 2. If a treaty conflicts with a federal statute, the one adopted last in time conrols & the earlier must give way. 3. If a treaty conflicts with the U.S. Const., that treaty is invalid.
Moral Rights (Cranston)
1. Moral Rights of one person only: "Have I just claim to these rights?" Rights attained through individual action/growth/possession, and therefore justified 2. Moral Rights of anyone in a particular situation: Rights which belong to everyone in a specific category (e.g. au pairs) 3. Moral Rights of all people in all situations: Universal, few in number, generalized (e.g. right to liberty) (Human Rights are a form of moral Right, and they differ from all other moral rights in being the rights of all people at all times and in all situations)
1st Amend. - Speech: Public Forums
1. Must be subject matter and viewpoint neutral 2. Must be a time, place, or manner regulation that serves an important government purpose. 3. Need not be the least restrictive regulation possible 4. Fees must not be discretionary.
Congress - Delegation of Powers
1. No limit on ability to delegate legislative power. 2. Legislative and line-item vetoes are unconstitutional - bicameralism and presentment 3. Congress may NOT delegate executive power to itself or other officers.
1st Amend. - Speech: Not Protected
1. Obscenity & Sexually Oriented speech (but not mere possession) 2. Zoning ordinances to regulate adult bookstores 3. Child porn (including possession) 4. Fighting words 5. Advertising for illegal activity 6. Deceptive advertising 7. Defamation
Agreement
1. Offer 2. Invitation to Treat - a suggestion to someone else that they should make an offer. 3. Acceptance 0 must be in full
Termination of an Contract
1. Performance 2. Breach 3. Frustration 4. Agreement
Substantive Due Process - Property Takings
1. Possessory taking 2. Regulatory taking
Due Process
1. Procedural 2. Substantive
1st Amend. - Speech: Public Places
1. Public forums 2. Designated public forums 3. LImited Public Forums 4. Non-public forums
Individual Liberties - Exceptions
1. Public functions exception - private entity performs a function usually done by the government 2. Entanglement exception. - Gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity.
Individual Liberties - Levels of Scrutiny
1. Rational Basis 2. Intermediate Scrutiny 3. Strict Scrutiny
Three steps to the implementation of a treaty
1. Sign 2. Ratify 3. Accede
1st Amend.
1. Speech 2. Association 3. Religion
Free speech test regarding public employees
1. Speech must relate to a matter of public concern 2. If the speech is a public concern, the government must show that its interest in efficiently delivering public services outweighs the employee's free speech rights 3. The government can justify its action by showing that a negative employment decision would have been reached anyway for reasons unrelated to the employee's speech
Interactions on the international stage
1. State-state relations 2. State-IO relations 3. IO-IO relations 4. State-alien relations (state-legal/natural person) (transnational public relations) 5. Legal person-natural person relations (transnational private relations)
Federalism - State Taxation
1. States may not use their tax systems to help in state businesses preferentially. 2. A state may only tax activities if there is a substantial nexus between the product or activity to be taxes and the state. 3. State taxation of interstate business or companies must be fairly apportioned.
Equal Protection - Racial Benefits
1. Strict Scrutiny is applied 2. Numerical set-asides require CLEAR PROOF OF PAST DISCRIMINATION 3. Public education may use race as ONE FACTOR in admissions decisions.
Standing - Generalized Grievances Exceptions
1. Taxpayers have standing to challenge the government expenditures pursuant to federal statutes as violating the establishment clause. 2. Citizen has standing to allege federal action violates 10th Amend. by interfering with the powers reserved to the states so long as there is injury in fact and redressability.
Mootness - Exceptions
1. The alleged action is capable of repeated harm but escapes judicial review because of its inherently limited time duration (e.g. abortion) 2. Voluntary Cessation 3. Class action suits
Statute of the International Court of Justice: Article 38
1. The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law c. the general principles of law recognized by civilized nations d. subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law 2. This provision shall not prejudice the power of the court to decide a case ex aequo et bono, if the parties agree thereto
Procedural Due Process - Procedure Balancing Test
1. The important of the interest to the individual 2. The ability of additional procedures to increase the accuracy of the FACT-FINDING 3. The government's interest in efficiency and saving money.
American Anthropological Association, "Statement on Human Rights" (1947) Main Argument
1. The individual realizes his personality through his culture, hence respect for individual differences entails a respect for cultural differences 2. Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered 3. Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any declaration of human rights to mankind as a whole
Executive Power - Foreign Policy
1. Treaties 2. Executive Agreements
Acceptance
1. Unconditional (must be a mirror image of the offer, and if conditions are added, they create a counteroffer); 2. Unequivocal, 3. Legally Communicated
When reservations are valid:
1. When the treaty doesn't prohibit it 2. To modify state's obligation 3. When it doesn't change the character of the treaty.
Rights of sovereign states
1. equality with other sovereign states 2. freedom from outside interference 3. power to exercise jdx over states territory and nationals 4. immunity from the jdx in each others courts
Many things can be sources of CIL except:
1. jus cogens 2. general principles of law (from CALI)
Obligations of states under Intl Law
1. protection of diplomatic and consular personnel and premises (Iranian hostage case) 2. protection of aliens (Mexican jail case) 3. prevention of environmental harm to other states (Canadian mining)
2 part test for good/bad faith [Roth v. Sharon Steel 1983]
1.) A party may in good faith seek a modification when the 'unforeseen (might not be necessary see Man v. Midcontinent) economic exigencies existed which would prompt an ordinary merchant to seek a modification in order to avoid a loss on the contract 2.) Even where circumstances do justify asking for a modification it is nevertheless bad-faith conduct to attempt to coerce one by threatening a breach
Federal Courts - Sovereign Immunity
11th Amend. prohibits federal courts from hearing cases against 1. State governments 2. Federal agencies
Turning points in the development of int. law
1648 Treaty of Westphalia. 1945 end of WWII and adoption of the UN charter.
The heroic period of international law
16th, 17th, and 18th centuries
Origins of the Welfare State: Kelley
1880's Germany: Bismarck created social insurance programs for old age, job-related accidents, and other medical costs -U.S. system created during 1930's and 1960's -Built on an idea: social provision of goods be treated as a right possessed by all people as citizens, rather than as an act of charity
Permanent Court of Arbitration
1899 The Hague in the Netherlands -Provides services for resolution of disputes involving states, intergovernmental organizations, and private parties
Naulilaa Incident
1914 German officials were killed at a Portuguese Post of Naulilaa in Angola after the Germans went into Angola to discuss with the Portuguese the importation of food supplies into german territory. Problems in translation led to fighting and the death of the german officials. In reprisal, german troops attacked and destroyed certain forts and posts in Angola. This event took place PRIOR to Portuguese entrance into WWI. Arbitrators said that the death of the german officials was not the consequence of an act contrary to the law of nations. There criteria to commit a reprisal: 1) Be in response to an illegal act 2) Had to have been proceeded by an unsatisfied demand 3) If a reprisal of force, must be out of necessity and proportional
European Convention for the Protection of Human Rights
1950: Signed by member states of the Council of Europe -Social and economic rights omitted -European Commission and European Court of Human Rights established w/ full judicial power to investigate + remedy any breaches of rights named in the convention -Tangible attempt to translate human rights into positive rights on an international scale
Religious and Philosophical Concern of Nuclear Weapons
1983 American Catholic Bishops pastoral letter "The Challenge of Peace" 1986 United Methodists Church Bishops statement "In Defense of Creation" Together, say there are ethical problems posed by the possession and threat of use of nuclear weapons They fundamentally violate jus in bello principles: Discrimination - will always aim at indiscriminate suffering Proportionality - always destroys civilizations
Montreal protocol Industrialised, rich nations.
1989-1993, rich states were forced to freeze CFC emissions. 94-95, reducing CFC production with 75 %. 1996 stop production and emissions of CFC.
Rio Convention
1992 - The United Nations Framework Convention on Climate Change agreed upon. A broad treaty with the aim of decreasing greenhouse gas emissions and thus reducing global warming. This convention did not legally bind member nations, and did not set specific targets for reduction of emissions, flawed.
Kyoto Protocol
1998 - Produced by the UN, sets specific emissions targets to meet the aims of the Rio Convention. Developed countries that have signed and ratified the agreement have to meet mandatory emissions levels, whereas developing nations (including China) only have to report. Flawed in that the biggest emitter in the world doesn't have to meet any specific targets and that the United States hasn't ratified the agreement.
ICC development
1998 Rome Statute, 2003 election of judges and inaugural session, 2005 first arrest warrant
UCC SOF- Confirmation Between Merchant Exception [UCC § 2201 (2)]
2 Merchants. Merchant = someone who regularly deals with goods of a kind or holds OR holds self out as having particular skills or knowledge involved in a transaction • example: a farmer is not a merchant because does not know about selling because less transactions. Need written confirmation to be sent to the other party in a reasonable time after k was formed. Confirmation must be received by the party who must have reason to know of the confirmation's contents and then fail to object within ten days. Must be sufficient against the sender this means 3 requirements need to be satisfied (1) give evidence of k (2) sender signs & (3) quantity term there
Federalism - Privileges & Immunities
2 Sources 1. Art. IV 2. 14th Amend.
Bilateral Contracts
2 promises (a promise in exchange for a promise); if the promises are broken, there may be responsibility if losses are incurred
Doha Amendment to the Kyoto Protocol
2012 - This amendment effectively extends the Kyoto Protocol to 2020. New Zealand refused to partake, still aiming to reduce emissions to 5% below 1990 levels as a member of the UN
The statute of limitations in Texas for break fo a written contract is
4 years
UN Security Council Resolution 1368
9/11 constituted a threat to peace
The Buyer and Seller Temporary Residential Lease forms are good for any period up to:
90 days
The Buyer and Seller Temporary Residential Lease forms may be used for a lease period not to exceed:
90 days
Montreal protocol Developing countries.
99-04 Freeze. 05-06 50 % reduction. 06-09 75 % reduction. 10 Stop production and emissions. Multilateral fund founded by industrialised countries to help promote alternative technologies.
The Lead-Based Paint Disclosure is:
A federal requirement for residential property built prior to 1978
The promising note or financing instrument is the
Borrowers personal promise to repay the debt according to agreed terms
UCC §2-314 IMPLIED WARRANTY OF MERCHANTIBILITY
A 'merchant' who regularly sells goods of a particular kind impliedly warrants to the buyer that the goods are of good quality and are fit for the ordinary purpose for which they are used
A valid lease can be executed by
A 44 year old woman who is physically handicapped
Encroachment
A building or some portion of it— a wall or fence, for instance— that extends beyond the land of the owner and illegally intrudes on the land of an adjoining owner or a public street
Examples of reservation
A bunch of Arab states reserved themselves against article 27, paragraph 3 of the Vienna Convention on Diplomatic Relations: The diplomatic bag shall not be opened or detained. → The person of the diplomatic mission, the premises, and the correspondence are all inviolable. Saudi Arabia: If they suspect the diplomatic bag to contain illegal things, authorities may request the opening of the parcel in their presence and in the presence of a representative appointed by the diplomatic mission concerned. There's also the example of ISO 3103, wherein Ireland reserved itself against the provision that milk is to be poured before the tea.
merchant
A business or person who deals regularly in the sale of goods or who has specialized knowledge of goods.
Legal rights in a contract are shared equally between
A buyer and seller
During the option period,
A buyer may terminate the contract for any reason
Ownership
A collection of rights that allow the use and enjoyment of property
An abstract of title is:
A complete written history of title
Seller is also lender in
A contract for deed
Sale
A contract in which ownership of goods transfers immediately from the seller to the buyer for a price.
Adhesion Contract
A contract where one party has total control, the other party has little or zero liability
frustration of purpose
A court-created doctrine under which a party to a contract will be relieved of his or her duty to perform when the objective purpose for performance no longer exists (due to reasons beyond that party's control).
forum non conveniens
A doctrine whereby a suit is dismissed because an alternate, more convenient forum is available.
Standing - Redress-ability
A favorable court decision can remedy the harm - if a federal court ruling would have no effect then it is merely an advisory opinion
R2P
A global commitment in which states will go in and protect all populations from mass atrocity crimes and major human rights violations. There are three main prongs: prevent, protect, and rebuild. Although, the rebuild prong was taken out. It was endorsed by all member states of the UN. Different from humanitarian intervention because states have the choice with humanitarian intervention to help out. This is one of the reasons why states do not want to make this into a treaty because it would breach state sovereignty. However, it is gaining traction in the international sphere. Example: Libyans authorized NATO to come in and intervene during Gaddafi's regime.
Without opinio juris...
A history lesson devoid of of legal significance
1st Amend. - Speech: Overbreadth
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
1st Amend. - Speech: Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
Individual Liberties - Rational Basis
A law is upheld if it is RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE. - Challenger has the burden of proof
Individual Liberties - Strict Scrutiny
A law will be upheld if it is NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE. - The government has the burden of proof.
Individual Liberties - Intermediate Scrutiny
A law will be upheld if it is SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT PURPOSE. -Government has the burden of proof.
Law according to Hart
A legal rule is a (1) prescription of conduct, (2) generally obeyed, and (3) considered as binding by its addressEEs: International law fits much better into this conception of law. → Prescription of conduct should be viewed as binding, which is met by international law. → States don't say that international law isn't valid, but rather invoking exceptions to the law, thus confirming its validity. → Israel and Lebanon 2006: Self defence; Putin invoked the self-determination of the people of Crimea → states use international law as an argument for their actions, thus reinforcing its validity.
contract
A legally binding agreement
Actual Fraud:
A material misrepresentation of past or existing fact by the party to be charged, which: (1) Was false (2) Was made with knowledge or in reckless ignorance of the falsity (3) Was relied upon by the complaining party, and (4) Proximately caused the complaining party injury
Fraudulent Misrepresentation [RST §164]
A misrepresentation is fraudulent if the maker intends his assertion to induce assent and Knows the assertion is not factual, Doesn't have the confidence he implies OR Knows he has no basis for his assertion.
Preliminary Negotiation
A party desiring to reach a contract may make a statement which is not an offer but rather a solicitation of an offer with the other party Such statements cannot be accepted exchanging communications of a more or less detailed nature about the type of exchange of performances to which each would be willing to agree
RST of Restitution §117 PRESERVATION OF ANOTHER'S THINGS OR CREDIT
A person who has preserved property, although without consent, is entitled to restitution if: (1) He was in, or had taken lawful posession of the property (2) It was reasonably necessary to take steps before contacting the owner (3) No reason to think owner wouldnt want him to act (doesnt matter what owner in fact wanted) (4) he intended to charge (5) the owner has accepted the property back
mental incapacity
A person- is suffering from "Insanity" or "was of unsound mind"- whose mental capacity is so deficient that she is incapable of understanding the nature and consequences of a K Rule- K is voidable by a person who due to mental illness or defect lacked the capacity to contract at the time of entering into the agreement OR can be affirmed by the mentally incompetent person during a lucid interval or upon recovery. Tests: [Traditional Test] Cognitive Test a person lacks capacity to enter into a K if the person is unable to understand the nature of the transaction or its consequences [Modern Test] Volitional Test looks to whether a person is unable to act reasonably in the transaction and the other party has reason to know of the condition [RST §15 also follows] Burden of Proof- is on party seeking to avoid the contract
Offer
A personal proposal by one party to another intended to create a legally binding agreement. There must be complete and definite terms.
Indestructibility IS
A physical characteristic of land
Indestructibility is
A physical characteristic of land
defamation of private persons
A private person is not required to show actual malice. A private person may not recover at all without some proof of fault for the inaccurate publication May not recover general damages without proof of specific injury May not recover punitive damages without proof of actual malice The plaintiff must also prove its falsity as a statement
Proposed 2003 flatulence tax
A proposed tax by the Labour Government in 2003 that would require farmers to pay into a tax to fund research into decreasing methane emissions. Government backed down after concerted opposition from the rural sector.
Bill of sale
A receipt evidencing the transfer of ownership of goods
1st Amend. - Speech: Conduct vs. Content
A regulation that controls the CONTENT of speech is less likely to be upheld than a regulation of CONDUCT incidental to speech.
RST (Second) § 250. When a Statement or an Act Is a Repudiation
A repudiation is (a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or (b) a voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach.
Opinio juris vel necessitatis
A sense of legal obligation
statute of frauds
A state statute under which certain types of contracts must be in writing to be enforceable.
Free trade agreements and coercive sanctions
A state undertakes the obligation to open their markets to goods of the other country. If the US violates an agreement with a tiny tiny state, their countermeasures are completely inefficient, whereas if the US were to ban banana imports it'd cripple the tiny country. If you're backed by a security council member with veto power, you're pretty much free to do whatever you feel like. → Argument rests on two assumptions: Restrictive definition of sanctions, where they have to be coercive. → Only applies to domestic criminal law. Constitutional law, which handles the relationship between the state and institutions → No coercive sanctions, bc the state has a monopoly of coercive action. Administrative law, relationship between state and individuals.
Illusory promises
A statement which appears to be promising something but which in fact does not commit the promisor to do anything at all. unrestricted right to cancel Ex: Right to Terminate [at-will]: Classical: party with termination right has not furnished consideration Modern: as long as terminating party has obligation to give notice, even if notice implied, this duty of notice itself furnishes consideration
An abstract of title is
A summary of title search
Peacekeeping Missions
A technique designed to preserve the peace, however fragile, where fighting has been halted, and to assist in implementing agreements achieved by the peacemakers Assumption - parties want to stop fighting Most common measure used to deter hostility Started in 1948 when first UN military observers deployed to Middle East Role is to keep belligerents separate to have space for political bargaining
Leasehold
A tenants right to occupy real estate during the term of a lease, generally considered a personal property interest, although a long-term lease may be eligible for treatment as real property for financing purposes.
Express term
A term in a contract specifically agreed to by both parties
Chinese Legal System
A type of legal system composed of Confucianism, communist regulation and Western-style law.
Void and Voidable
A void contract is one that is no longer valid and will not hold up in a court. A voidable contract is one where one or both parties have a right to terminate the contract without legal ramifications.
Disclaimer
A written clause in which the seller excludes or modifies its implied warranties
2207(2) Merchants
Additional term is automatically a part of the contract. 3 exceptions: i. Expressly limits acceptance to terms in offer ii. Material alteration [most important, no concrete definition]use test for materiality Paul Gottlieb v. Alps. Below.-examples disclaimer of warranty & arb clause iii. Notification of objection in reasonable time
UN Security Council Resolutions
ALWAYS Hard Law (always binding)
Asia Pacific Economic Cooperation
APEC
________ of an offer means that the accepting party does so with no change to the contract whatsoever.
Acceptance
When real estate is sold, any personal property that is to be conveyed is
Accomplished through an addendum
Textual interpretation of article 33
According to the convention, the refugee must be present within the country's borders, but the word refouler might mean "rejection" too, meaning that states would be forbidden to reject refugees at the border should this impact their livelihood.
When additional land is deposited by a river running through an owners property this land has been acquired by
Accretion
detrimental reliance
Action taken in reliance on the promises or representations of another causing legal detriment 1) Reliance is presumed unless D proves otherwise (Greasley v Cook) Lodger taking care of elderly couple told he would have interest in property but claim failed due to insufficient nexus - had not relied on them to his detriment because had taken care of the couple out of friendship not on the promise of the interest.
Implied Contract
Actions & circumstances infer and define the terms of the contract; may be words, conduct, gestures; contracts are implied at law
Acceptance
After an offer is made, the offeree now has the 'power of acceptance.' With this power the offeree can (1) accept (2) make a counter offer (3) reject (4) offer can terminate
Judicial foreclosure allows property to be sold by court order
After the mortgagee has given sufficient public notice
Elements of a Valid Contract
Agreement Consideration Consent Capacity Intention Legality
Treaty
Agreement concluded between states in written form.
Contract
Agreements between two or more parties that create obligations
Complex Peacekeeping
Aka second generation peacekeeping UN taking on a greater role in reconstruction Legality - it's CIL (but Russia objects to its use because states are trying to do peace enforcement missions without SC authorization) Some argue this is too similar to Peace Enforcement missions
United Nations Charter Articles 56
All Members of the UN pledge to take joint and separate actions to achieve the purpose of what is said in 55.
If a broker receives more than one offer on a property:
All must be presented to the seller unless the seller has instructed the broker otherwise
If a broker receives more than one offer on a property:
All must be presented to the seller unless the seller has instructed the broker otherwise in writing
Legislative Power - 10th Amendment
All powers not granted to the U.S., nor prohibited to the states, are RESERVED to the states or the people.
Preamble to the UN charter:
All states affirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. One of the purposes of the UN is to promote and encourage respect for human rights and for fundamental freedoms, without distinction as to race, sex, language, or religion. Pursued interests and put values into practice through the development of international law.
Need Not Belong to Formal Religious Organization
All that is required is the person sincerly hold religous beliefs that prevent him from working a certain day or on military products
United Nations Charter Articles 51
Allows states to engage in self-defense against an armed attack
Statute of the ICJ Article 65
Allows the court to give advisory opinion. Any court or the UN general assembly or security council can ask for advise. This can be used in other decisions as well which can be converted in to a WHOP
Geneva Conventions
Also known as "international humanitarian law", these are laws that only apply in Wartime: Prohibits military action that does not discriminate (killing civilians) Proportional response (no superfluous attacks) Prohibits action that would have severe environmental effects Applies only to state to state conflict
RST2 §32 and bilateral k
Ambiguity where offer is ambiguous, acceptance may occur by either promise OR performance --> continues earlier approach but adds that unless the language or circumstances indicate otherwise, it should be assumed that an offer may be accepted either by performance or a promise to perform. Exception. §32 not applicable when it is clear the offeror sought an act and only an act in exchange for her promise of performance
________ are changes that are made to the original contract, such as changes to the closing date or changes to the sales price, down payment and/or the amount financed.
Amendments
Individual Liberties - Bill of Rights Exceptions
Amendments NOT enforceable against state and local gov'ts: - 3rd Amend. right to not have to quarter soldiers in your own home - 5th Amend. right to grand jury indictment in ALL criminal cases - 7th Amend. right to a jury trial in civil cases - 8th Amend. right against excessive fines.
Ratification
An act in which a state confirms its consent to the content of a treaty. Once a treaty is signed, there isn't a time limit for when you have to ratify it.
Offer
An act or statement that proposes definite terms and permits the other party to create a contract by accepting those terms
Multilateral treaty
An agreement between more than two nations
Executive Power - Executive Agreements
An agreement between the United States and a foreign country that 1. is effective when signed by the President and the head of the foreign nation; 2. can be used for any purpose 3. prevail of conflicting STATE laws but never over conflicting FEDERAL laws or CONST.
Bilateral treaty
An agreement between two nations
Contract to sell
An agreement to transfer ownership in the future
Comity
An association of nations for their mutual benefit., courtesy and considerate behavior towards others
A listing agreement is
An employment contract
Unlike sales contract a listing agreement is
An employment contract
Estate at will
An estate that give the lessee the right to possession until the estate is terminated by either party; the term of this estate is indefinite.
What is a treaty?
An example of two concurring interests, thus at least two states must necessarily agree.
Implied warranty
An implicit warranty obligation imposed by law on all sellers; includes implied warranty of title, implied warranty of fitness for a particular purpose, and the implied warranty of merchantability
Implied Warranty for Workmanlike Construction and Subsequent Users
An implied warranty of workmanlike construction extends to subsequent, 3rd party purchasers of a home
Estate for years
An interest for a certain, exact period of time in property that continues fro period to period- week to week, month to month, or year to year
mutual assent
An offer and acceptance which together form the terms of a contract.
RST2§29:
An offer may be accepted only by a person in whom the offeror intended to create a power of acceptance.
Modern View and Unilateral contracts RST2§45
An offer may not be revoked when the offeree has accepted the offer by substantial performance.
Offers Made in Jest
An offer which the offeree knows or should know is made in jest is not a valid offer. Thus, even if it is accepted, no k is created. (Lucy v. Zehmer)
Option Contracts
An option contract is an offer + separate consideration to hold that offer open for a certain amount of time. It is an irrevocable offer. Essentially, a person pays for time to think about an offer.
Limited warranty
Any warranty that provides less protection than a full warranty; the warranty must be very specific and it must be called a "limited warranty."
Goods
Anything moveable, except for money, securities, and certain legal rights
consideration
Anything of value (e.g., money, services, goods, promise) given to induce another person to enter into a contract. ALSO CALLED: Valuable Consideration
Encumbrance
Anything- such as a mortgage, tax, or judgment lien; an easement; a restriction on the use of the land; or an outstanding dower right- that may diminish the value or use and enjoyment of a property
Geneva Convention III
Applies to POWs
Classical Period of Jus ad Bellum: 330 BCE - 300CE
Aristotle: -War should not be an end unto itself -Thinks of war as a moral issue while Cicero thinks of it more as a legal issue -Strongly criticizes focus on violence -War is only a means to obtaining a good life Cicero: Two just causes exist for engaging in war (procedural restraints): 1)Redressing an injury (responding to an act of violence) 2)Driving out an invader
1945 UN charter
Article 1, paragraph 2: Equal rights and self-determination of peoples. First seen in the declaration of independence, in European nationalist movements, and Woodrow Wilson's fourteen points. Elevated self-determination to legal status. No more talking about it as a political concept. Or it was okay to talk about it like that for another 20 odd years.
Treaty-Based Law and Self-Defense
Article 51 - language admits two different interpretations: -Restrictionist -Counter-Restrictionist *no authoritative decision on which is correct
Political and Civil Rights in UDHR
Articles 1-20
Unique to Universal Declaration of Human Rights
Articles 21-30 (Economic and Social Rights)
Customary law
Articles 31 and 33 are manifestations of customary law, and thus binding for states to follow anyway. If a treaty is an expression of customary law, it's binding regardless of ratification or accession, and regardless of pacta sunt servanda. Treaties crystallise customary law.
agreement to agree rule
Ask whether the parties intended to be bound when they agreed in principle or only if further negotiations proved successful (1) Where the contract was essentially final and the written contact was going to be simply an evidentiary memorial of the agreement - it is still enforceable (2)Where it appears that the parties did not intend to be bound until the contract was written - they are not bound
Express warranty
Assurance of quality or performance explicitly made by the seller
Consideration
Both parties must receive something of real financial value.
A sewer system would NOT
Be included as a description of land like trees water hills, etc
Community property CANNOT
Be mortgaged or conveyed by one spouse without the consent of the other
When a property is destroyed by fire the seller will
Bear the loss
Procedural Due Process - Prisoners
Prisoners have very few liberties, therefore there is rarely a taking.
A property owner wants to use water from a river that runs through the property to irrigation a corn field for beneficial use of the water.
Based on this fact, it can be assumed that this property owners state relies on the doctrine of prior appropriation
With community property it "cannot"
Be conveyed by one spouse only
Before treaty of Westphalia
Before this monarchies were amassing power. Centralised power taken from feudal lords. Fragile power base. Still kinda ruled by supranational entities. Pope. The emperor. (Unless you were Sweden ofc bc they were all catholics and we weren't.) The protestants won, and the powers of the pope and the emperor were weakened, meaning that sovereigns could govern as they saw fit. Westphalia recognised the supremacy of the monarchs and the sanctity and equality of sovereign states.
A seller promised to sell and a buyer agrees to buy for a certain amount and out in writing; this is called a
Bilateral contract
All treaties specify the date which they enter into force
Bilateral treaties. (Exchange of instruments of ratification.) Multilateral treaties. (Enter into force after the deposit of the instruments of ratification by a minimum number of states.)
Private international law
Branch of domestic law that solves conflicts of laws btw two differing legal systems. In international matrimonial conflicts for example, should the domestic law of subject A or subject B be used, or should it in fact be the law of the country in which the conflict is taking place? Some countries (e.g Lebanon) use the law of country in which the marriage was sacralised, whereas other countries (e.g France) use the law of the couple's first country of residence. If the chosen legal doctrine conflicts too much with the country in which the case is considered, judges can set the chosen law aside referring to the necessity of upholding public order etc.
Draft Articles on State Responsibility (Article 15)
Breach consisting of a composite act. States are responisble if they break/breach an international obligation.
Treaty termination - material breach
Breaching a provision essential to the accomplishment of the object or purpose of the treaty.
Montreal protocol 1987
Bring CFC emissions to an end. Legal regime based on differentiated obligations.
Under a contract of deed, the buyer has possession and maintains the property
But does not have legal title
Pragmatic response
But regular, national, law, is breached all of the time. Does that mean that it doesn't exist? 616000 people per year die bc of homicide. 120000 people per year die bc of international conflict. To criticise international law, media n stuff often brings up sensational cases, which ignores all of the regular proceedings and the thousands of rules that constitute international law.
The seller can provide the written disclosure of property condition to the buyer after the agreement is signed,
But the buyer the right to terminate the contract within 7 days after the receipt of the disclosure.
Price Protections Nanakuli
But the custom of "price protection," adequately proven by Buyer to be a trade usage in the local asphalt industry, can be construed consistently with this express price term. This is because the price protection trade usage "forms a broad and important exception to the express term, but does not swallow it entirely," and exceptions will be allowed if they don't totally negate the express term. Therefore, a reasonable jury could have found that the price protection, as a trade usage, was incorporated into the written agreement. the price protection term was so prevalent in the concrete trade that it was reasonable to find that the parties impliedly incorporated it into the contract. ^ was supported by D's past history of price protection
An option to buy contract allows the buyer to
Buy for a fixed price within a specified time period
Contract for deed the
Buyer does not receive legal title
An option to purchase contract allows
Buyer to buy for a fixed price etc.
International community
Common values emerged post -45.
Convention on the elimination of all forms of discrimination against women
CEDAW
Closer Economic Relations
CER, bilateral treaty between New Zealand and Australia
Convention of the elimination of all forms of racial discrimination
CERD, ratified but NZ criticised in 2007 over the Foreshore and Seabed controversy
Consideration Under UCC
CL rules govern. Firm Offer Rule additional exception to keeping offer open without consideration
CL and Charitable Subscriptions
CL some courts: Before the use of the promissory estoppel doctrine became widespread, courts enforced such promises of charitable contributions by finding consideration to be present. CL some courts: Some courts found an implied promise by the donee to use the gift for charitable purposes. CL some courts: Other courts found that the promises of other prospective donors to make donations were consideration for the particular donor's promise. these "consideration" theories were tenuous at best, since the prospective donor almost never truly "bargained" for his promise.
Restitution without Promise
CREDIT BUREAU ENTERPRISES, INC. v. PELO (2000) Pelo threatened to kill himself and was involuntarily hospitalized. Pelo refused to sign release that would ensure payment from either him or his insurance until awoken at 5am by nurse. Few days later, hospital realized it didn't have authority to keep him, and he left. (1) Pelo was personally liable for bill b/c personal hospitalization order somehow suggests he was mentally impaired. (2) Doctor acted unofficiously with intent to charge (3) services were necessary (4) No reason to think recipient wouldn't want services, if mentally competent Impossible to give consent
Manufactured housing
Can be considered real property when proper paperwork is filed
Option Contract Termination
Can be terminated by (1) lapse of time (2) death of person or thing essential for performance of offered contract or (3) supervening legal prohibition
Byman
Can loiter above target for house (until least amount of civilians present) Small blast radius No risk to US forces Limits training operations Less casualties than boots on ground or strategic bombing No detainees Cheap Hard to replace senior leadership (decapitation of organization)
Prior to closing, severe damage to or destruction of a property under contract:
Can result in termination of the contract
A suit for specific performance of a real estate contract asks for a
Conveyance of the property
Rule P-53 of the Texas Department of Insurance states that Title Companies:
Cannot provide food and beverages for a picnic for a single firm, Cannot provide an annual party for a single firm, Cannot provide continuing education classes unless they charge the market rate for those classes
Political Question Doctrine
Cases that are dismissed as non-justiciable political questions: 1. Guarantee each state a republican form of government (guarantee clause) 2. President's foreign policy 3. Impeachment and removal process 4. Partisan gerrymandering
Modern definition of a contract
Centers on a promise; "A promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty"
Customary International Law
Certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law "General international law" -more generally applicable than treaties
Suit for specific performance asks for
Conveyance of the property
Article 42
The council can order military action to 'maintain or restore international peace and security'
Productive Chalenges (Ignatieff)
Challenges within and without to the universality of human rights has proved useful in that it Has forced activists to question their assumptions, to rethink the history of their commitments, and to realize just how complicated intercultural dialogue on rights questions becomes when all cultures participate as equals
Exception to 2(4): Force authorized by the UN Security Council
Chapter VII (Articles 39-51) Article 39 - The Security Council is empowered to determine the existence of any threat to the peace, breach of the peace or act of aggression No definition as to what acts constitutes as what SC has the authority to make recommendations on what to do Article 41 - allows SC to impose non-military sanctions (economic, coercive diplomacy) Article 42 - if measures in 41 are inadequate, SC can use force in the form of "peace enforcement missions"
EC - Hormones
Complaint brought forward by the United States claiming measures taken by the EC restricting imports of meat and meat products from the US were inconstant with the GATT, SPS, and TBT. The Panel had found it inconsistent and was upheld by the Appellate Body. EC offered compensation as it would be unable to comply with the "reasonable period of time" and to implement the law.
Internal Conflict
Civil war, wars of secession, insurgency
Spheres according to Lorimer
Civilised, barbaric and savage
Spheres according to von Liszt
Civilised, semi-civilised, not civilised
Termination by Conditional Acceptance or Additional Terms
Claiming to accept but changing or modifying terms. Counter offer. Rejection. RST§60.
Savages, Victims, and Saviors: Definition of human rights violations
Clash between the culture of human rights and the savage culture (The culture, not the state, is the actual savage) In this reading, All nonwestern cultures are framed as the "savage"
Equal Protection - Race
Classifications based on race, alienage, and national origin get STRICT SCRUTINY.
1) article 51 of state rep, 2) article 52 threatening use of force
Coercion
Coercion in a treaty-signing sense
Coercion of the representative (If the signature has been obtained through forceful acts against the plenipotentiary, the treaty is invalid.) or coercion of the state (If the consent to a treaty has been procured through the use of force, such as a military intervention, the treaty is nullified. This shows a difference between modern and classical international law. → Prohibition against the use of force 1945. Before that, peace treaties in which states were forced to concede territory n stuff were completely legal. → Some states have insisted that economic and legal pressure is virtually the same as physical coercion, but states are bound by a treaty signed under political or economic coercion.
Teleological approach
Comes from the Greek word Telos, meaning goal. Interpreter looks at words and tries to apply the meaning that best fits the goals of the specific actor.
Kelley's take on Welfare Rights
Communitarian or collectivist political philosophy that is willing to sacrifice freedom
Sect Preference
Compelling Interest Test applies: To be valid, the law or program must be narrowly tailored to promote a compelling interest
Price Fixing
Competitors agree to charge the same amount for a product or service
EC - Asbestos
Complaint made by Canada, Respondent: EC Concerning measures put into place by France with respect to the prohibition of asbestos and any products containing it. However France was upheld as it was in line with Article XX(b) of the GATT 1994
US - Shrimp
Complaint made by India, Malaysia, Pakistan and Thailand. Consolation to the US concerning the ban on importation of shrimp and shrimp products from these complainants imposed. The US compliance was found to be justified under conservation measures under Art XX(g) of the GATT 1994
EC - Bananas III
Complaint: made by Ecuador, Guatemala, Honduras, Mexico, US Respondent: EC Concerning the EC regime of importation concerning Bananas largely due to a historical reason with Africa. Considered inconsistent withe GATT and WTO.
Private International Law
Concerning the clash between laws from different jurisdictions, the 'conflict of laws'
Draft Articles on State Responsibility (Article 11)
Conduct acknowledged and adopted by a State as its own. Conduct that is acknowledged by a State can be considered their actions if they own up to it.
Acceptance by Conduct 2207(3)
Conduct by both parties that recognizes the existence of a k is sufficient to establish a contract for sale although the writings of the parties do not otherwise establish a contract. Terms of Contract by Conduct: terms consistent with those in which the writings of the parties agree, together with any supplementary terms incorporated under any provisions of the act. Supplementary term= gap-filler. Example=price term would be a reasonable price at the time of delivery.
Draft Articles on State Responsibility (Article 8)
Conduct directed or controlled by a State. An entity or person acting under the instructions of a state is considered an act of the state.
Draft Articles on State Responsibility (Article 4)
Conduct of organs of the State. Considers any act of an organ of the state as an act of the state. Defines an organ as any person or entity that has a status under the internal law of the state. Important because it deals with attribution.
Draft Articles on State Responsibility (Article 6)
Conduct of organs placed at the disposal of a State by another State. If an entity placed by one state is placed at the disposal of another state, the conduct of that entity is considered an act of the former state.
Draft Articles on State Responsibility (Article 5)
Conduct of persons or entities exercising elements of governmental authority. Considers the acts of an entity that is not part of the state but is empowered by the state as an act of the state. Important because it deals with attribution.
article 53 (compelling law)
Conflict with jus cogens
Legislative Power - State Legislatures
Congress CANNOT compel state regulatory or legislative action, BUT it can INDUCE state action by placing express conditions on spending (bribery)
Legislative Power - Art. 1, Sec. 8
Congress can adopt all laws that are NECESSARY and PROPER to exercise its (express/implied) authority.
Legislative Power - Commerce Clause
Congress can regulate commerce with 1. Foreign nations 2. Indian tribes 3. Among the several states
Legislative Power - Big 3
Congress has the express power to: 1. Tax 2. Spend 3. Regulate interstate commerce
Ijma
Consensus among scholars on contentious points of law (Islamic law)
The defining constraint of human rights interventions ought to be... (Ignatieff)
Consent
A contract to perform an unlawful act is
Considered a void contract
An exception or 'exemption' to CIL
Consistent Objector Rule
Customary International Law
Constant and uniform practice of States--legitimate expectation of similar conduct in the future.
1st Amend. - Speech: Content
Content based restriction must meet STRICT SCRUTINY 1. Subject matter restrictions (violence) 2. Viewpoint/ideology restrictions * Content-neutral regulations burdening speech need to meet intermediate scrutiny.
A(n) ________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
Contingency
When an executory contract is in place and a zoning change takes place the
Contract becomes void
Void contracts
Contract does not exist at law
During option period a buyer terminated the
Contract for "any reason"
UCC §2201: Writing Requirement
Contract for sale of goods >$500 has writing requirement, falls under SOF
When Is Acceptance Effective [mailbox]: Acceptance dispatched before rejection
Contract is binding as soon as the acceptance is dispatched. Revocation does not undo acceptance.
Before title passes the
Contract is in an executory status
Statute of frauds requieres
Contract to be in writing to be enforceable
Self determination after 1945
Cooperation. Normative expansion. Collectively established rules that are designed to facilitate cooperation and to solve problems that might arise from said cooperation. Almost all aspects of international law are governed by some sort of rule. There's a bunch of different laws. Pursuing development en masse. Institutionalisation of international law and society. International organisations facilitating cooperation. Roughly 300 of them.
Mortgage loan originators can be broken down into three categories: mortgage bankers, mortgage brokers and ________
Correspondent lenders
what do we do when interaction between 2209(4) and no waiver clause?
Court: no waiver clause is the equivalent of a private statute of frauds. AND secondly, a private statute of frauds is subject to all of the exceptions that the public statute of frauds is subject to. ex of exception: part performance parties behavior seems, at least in this narrow range of circumstances, to trump the NOM clause
Excuse to Avoid Disproportionate Forfeiture
Courts differ/will evaluate on facts- Will look at assets that will be forfeited vs. assets still owned sophistication + bargaining power of parties negotiating specific language of the K how and what is obtained by the non-breaching party
Adequacy of Consideration
Courts generally don't care; if a party bargains poorly, courts usually won't interfere; those who bargain take on the risk of their own errors; there are exceptions such as fraud, duress, etc.; the main concern is an exchange of mutual promises and obligations by the parties
modern doctrine and bilateral k
Courts have developed preference for bilateral contracts to avoid injustice of classical application
Federalism - Full Faith & Credit
Courts in one state must enforce all judgment of courts in another state if: 1. there was personal & subject matter jurisdiction 2. the judgment was on the merits 3. the judgment was final.
Estates in real property are
Created by a deed and or a bill of sale
Voluntaristic (Ignatieff)
Critics of the view of human rights diffusion would argue that this view is too "Voluntaristic" which means: Individuals in traditional societies are free to choose the manner of their insertion into the global economy; free to choose which western values to adopt and which to reject.
Cultural Relativism
Cultural relativism is the principle of regarding the beliefs, values, and practices of a culture from the viewpoint of that culture itself. Originating in the work of Franz Boas in the early 20th century, cultural relativism has greatly influenced social sciences such as anthropology.
Types of International Law
Customary Law, Trade Law, Treaties or Conventions, General Principles of Law-- supplementary rules
Paquete Habana
Customary law is a valid from of international and domestic law--it is binding. US courts have a duty to enforce customary law. There was consistant state practice and belief
Contracts that can't be disaffirmed
Enlistment contracts, Marriage contracts, Educational loans, Insurance loans, medical care
2209 Comment 2
DON'T NEED NEW CONSIDERATION UNDER UCC § 2209(1) BUT YOU DO NEED GOOD-FAITH
Mexico vs US "Tuna- dolphin" case
Decided "out of court", an issue of technicality made the provisions proposed by the US inconsistent. However animal harm was considered.
Soft law
Declaration, resolution
Failing to perform as agreed in a contract is considered to be in
Default by the party who fails to perform
Federal Judicial Power
Defined by Art. III of the Const. Matter before the court must be a JUSTICIABLE CASE OR CONTROVERSY *No advisory opinions - EVER
Article 38 of Statute of ICJ
Definition of treaty: International conventions general or particular establishing rules for contesting treaties
UCC SOF- Partial Performance Exception §2201(3)(c)
Delivery & Acceptance Partial Payment of goods sufficient WINTERNITZ V. SUMMIT HILLS JOINT VENTURE- P entered into oral K with D on lease renewal. No renewal ever took place, though P had already made some payments—partial performance. No K b/c K wasn't in writing.
Accession
Deposit of an instrument of accession with the depositary of a multilateral treaty. Specific to multilateral treaties. (because it'd be weird for a bilateral treaty to go into force with only one state party to it ya feel me?) Accession might be subject to parliament consent too.
After an offer has been accepted by a seller, one of the first things done in the transaction process is that the earnest money is
Deposited in the escrow account by the b user or buyer agent
Depositary
Depository is the authority to which the administration of the treaty has been trusted. → Like Switzerland, the Secretary General of the UN, or someone else or Italy or the European Council.
Accretion is land being acquired by
Deposits from a river and or stream
Chapter 4 of the UN Charter
Details the UN General Assembly's powers, outlines the 193 nations represented, each member nation has one vote.
Disadvantages of the Chinese Legal system
Difficulties with enforcement, focus on one's place in the societal hierarchy rather than human rights.
Express Contracts
Direct statement by the parties of the promises made; may be oral or written; all important terms are expressly states between the parties
Minors may ______ contracts at their option.
Disaffirm
Instrument of accession
Document signed by the head of state by which the state expresses its consent to be bound by the treaty. → Consent by accession when they fail to sign the treaties in due time.
Full powers
Documents provided from a competent authority, often ministry of foreign affairs, authorising this person to negotiate and sign treaties (Especially on technical treaties where deep knowledge is beneficial)
What does the UN Charter say about intervention?
Does not clearly address proscription on intervention in internal conflicts Several norms have been suggested to provide a legal framework for regulating outside intervention in internal conflict
UCC §2-313 EXPRESS WARRANTIES
Does not require that the seller have the intent to create an express warranty [change from old times]
The TREC residential contract forms are:
Drafted by the Broker Lawyer Committee
Old and archaic terms (that probably are gonna show up anyway)
Droit des gens, volkerrecht (folkrätt which is confusing in this case as it still is perfectly reasonable to refer to this in Swedish), law of nations (all of these terms have their origin in) jus gentium (i.e rules applicable to all, contrasting with) jus civile (which obviously only applied to Roman citizens)
Unmanned Aerial Vehicles (UAVs)
Drones Debut in Balkans in 1990s, used as reconnaissance Best known UAV - Predator Armed with Hellfire missiles - very small blast radius Bush used in early 2000s in Pakistan and Yemen Obama moved towards signature strikes - targets profile (men, 18-25 in areas where there is known terrorist activity) Trump so far has ordered 80 strikes
If a seller will continue to occupy the property for one month after the closing, the buyer and seller should:
Enter into a Seller's Temporary Residential Lease
The ________ ensures that all consumers are given an equal chance to obtain credit
Equal Credit Opportunity Act
The ________ ensures that all consumers are given an equal chance to obtain credit.
Equal Credit Opportunity Act
Evidence of title, a payoff statement, and an affidavit of title (if required) are all usually provided to the
Escrow agent before closing by the sellers
Elmer Fleckenfleck, an agent with After Hours Realty, was preparing a contract. The seller told Elmer that he wanted to stay in the property for at least a week after closing. Elmer said that would be no problem and entered the following text to Paragraph 11: "Seller and Buyer agree that Seller will remain in the Property for 7 days after closing and funding." In this case, Elmer has:
Engaged in the unlawful practice of law
Conflicts between Human Rights and Cultural Acceptance (Ignatieff)
E.g. Female genital mutilation is disdained by human rights activists, but in the eyes of many of the women affected, it is a "price" they must pay in order to belong to their tribe or family. If they refuse, they are ostracized from their community.
The Case of East Timor
East timor was a non-self-governing territory of Portugal which had not achieved self-determination until Portugal withdrew and indonesia came in and occupied it UN Security council condemned Indonesia and called upon int community to recognize self-determination for east timor and Portugal to help promote it There was an ICJ case between Portugal representing East Timor and Australia who struck a deal with indonesia over east timor's territory Indonesia was not a member of the suit because they had not consented Therefore the court ruled that it could not adjudicate a dispute over the lawfulness of indonesia's exercise of authority in and on behalf of east timor without indonesia there East Timor later voted to become independent which Indonesia respected
Socio-Economic Rights
Economic, social and cultural rights are socio-economic human rights, such as the right to education, right to housing, right to adequate standard of living, right to health and the right to science and culture.
Requirements of signed writing in electronic transactions
Electronic Signatures in Global and National Commerce Act (colloquially known as "E-Sign"), "electronic" signatures must be recognized for statute-of-frauds purposes. UCC exception: Under UCC § 2-201( 2), a memorandum sent by one merchant to another may under certain circumstances be enforceable against the recipient, even though the latter did not sign it.
Option Contracts created by UCC [§2205]
Empowers an offeror to create an irrevocable offer for sale of goods without consideration BUT there are prerequisites: (1) Offeror must be a merchant (2) Offer must be in signed writing (3) If language of irrevocability is on a form supplied by the offeree the offeror must sign TWICE. Once to make the offer and must separately sign the clause providing for irrevocability (4) Writing must contain language for irrevocability (5) Period of irrevocability must not exceed 3 months. [if offer does specify time it will be limited to 3 months unless consideration has been given or it is renewed Drennan is a HUGE exception and trumps 2205 in a handful of cases
Positive Rights
Enable citizens through the allocation of public funds
A claim, lien, charge, or liability attached to and binding real property is a(n) ________.
Encumbrance
Treaty of Westphalia 1648
Ended the 30 years' war, but also set up a set of rules. The beginning of diplomacy. A system based on the coexistence of independent sovereign states.
Leasehold estates:
Estate for years, period to period, and or estates at will
Civilised states
Europe, the Americas, Japan
International human rights law - regional level
European convention on human rights -50. American convention on human rights -69.
Pacta sunt servanda
Every treaty in force is binding upon the parties to it and must be performed by them in good faith. International treaties are binding legal instruments. → Only applicable to treaties in force.
Question 2: Is the K Reflected in Writing Sufficient to Satisfy SOF---What is Required to Satisfy Writing:
Evidence a contract for the sale of goods Be signed by the party to be charged AND Specify a quantity. *Thus, a memorandum is sufficient even though it omits other essential terms agreed upon. However, the contract is enforceable only as to the quantity *Though you need quantity absence of a material term does not ruin this. If there is no price courts may supply based on market information *writing requirement at a minimum here.
General assembly resolutions are not infrequently used as...
Evidence of customary international law
Police power is an example of a governmental power
Example: zoning ordinances
Exceptions to the Mailbox Rule RST2 §63(b)
Exception 1 Option Contracts: offeree must make sure offer is received. Once valuable consideration received you do not need protection from mailbox rule. Exception 2 Unauthorized Acceptance: Offeror says send by fedex and you send regular mail. Then you lose protection of mailbox rule. Acceptance not effective until receipt Exception 3 Schizophrenic Acceptance: If buyer sends both rejection and acceptance it depends on which one gets there first. If rejection first no contract If acceptance first, contract but doesn't begin until receipt not dispatch
impossibility
Excuses both parties from their obligations under a contract if the performance has been rendered impossible by events occurring after the contract was formed
courts divided over warranty
Extreme: Some courts dispensed reliance requirement completely if claimed warranty reflects reasonable expectations of buyer Extreme: Some courts require to prove reliance as an element of COA Intermediate: Any affirmations by seller relating to goods create a rebuttable presumption that the statements are part of basis of bargain but seller can rebut by clear proof that the buyer DID NOT RELY on the statements.
One of the parties to a joint tenancy dies. The deceased tenant's interest transfers to his heirs and not to the surviving joint tenants
FALSE
Texas Veteran's Housing Assistance Program loans can be:
FHA, VA, and convential
Rival theories about why states are bound to observe rules of intl law
FUNDAMENTAL RIGHTS (inherent rights; self-preservation, independence, equality, respect, intercourse) & POSITIVISM (values by which states have consented to be bound). Think slave cases.
The Special Provisions paragraph of the contract allows license holders to insert:
Factual business details, Statements not addressed in the contract, Information for which there is no TREC-promulgated addendum, lease or mandatory form
The special provisions paragraph can be used by the licensee to provide
Factual statements or business details
Substantive Due Process - Just Compensation
Fair market value only.
Federal Courts - Abstention
Federal courts may not enjoin pending state court proceedings.
Textual approach
Finding an objective meaning behind the text through employing dictionaries n stuff.
First step in the procedure of ratification
First, the institution that has the authority to ratify a treaty has to do it (often the parliament)(two thirds senatorial majority in the states)(majority of the national assembly or referendum in France). → Ratification is a democratic tool in that it helps the people to somewhat directly control foreign policy.
Russia, United States, China, UK, France
Five permanent members of the UN Security Council
Advantages of the Chinese Legal system
Flexibility, lower monetary costs, potential for effective preservation of relationships.
Restrictionist Interpretation of UNC 51 (Arend)
Focuses on "if an armed force" language States only have a right to self-defense if an armed attack actually occurs, states must wait to be struck
Restrictionist interpretation of UNC 51
Focuses on "if an armed force" language; states only have a right to self-defense if an armed attack actually occurs, states must wait to be struck
Counter-Restrictionist Interpretation of UNC 51 (Arend)
Focuses on "inherent right" language Framers of UNC did not want to circumscribe preexisting customary right
Counter-Restrictionist interpretation of UNC 51
Focuses on "inherent right" language; framers of UNC did not want to circumscribe preexisting customary right
Disclaimers for Implied Warranties UCC §2-316(2)
For Merchantability-"language must mention merchantability and in the case of a writing must be conspicuous For Fitness-must be in conspicuous writing and will be effective if it states that "there are no warranties which extend beyond the description on the face hereof" Difference-disclaiming for fitness of warranty can be less specific than that required for the implied warranty of merchantability but it must be in writing
Statute of limitations
For a breach is 4 years
Procedural Due Process - Takings Intent
For a taking to be unconst., Government must act INTENTIONALLY or RECKLESSLY - negligence is insufficient. EXCEPTION: In an emergency situation the gov't is liable ONLY IF its conduct SHOCKS THE CONSCIENCE.
. ________ is the legal procedure whereby secured property may be sold to satisfy a borrower's unpaid promissory note.
Foreclosure
Kosovo 1999
Former Yugoslavia (Serbia and Montenegro) occupied Kosovo which was inside Serbia (did not have a constituency) Ethnic conflict between Serbs and Albanians 1974 - Yugoslav constitution recognized Kosovo as an autonomous entity within Serbia Claims of independence increased in the 1980s 1989 - President of Yugoslavia Slobodan Milošević strips Kosovo of its autonomy because he believed its identity is essential for Serbia KLA (ethnically Albanian) fight back Civilians targeted and massacred, ethnic cleansing of Albanians under President's orders Article 42 UN Peace Enforcement mission - UNSC tried to pass resolution to mandate force and name Milosevic as the aggressor, but failed because of Russian veto NATO acts without UNSC approval, airstrike against Serbs and win Milosevic was the first head of state to be indicted for crimes against humanity NATO argues their action was justified because there was a humanitarian emergency This might have chipped away at the sanctity of state sovereignty (enshrined in the 1658 Peace of Westphalia)
Ultra Vires, Fraud, Coercion, conflict with jus cogens
Forms of invalidation for a treaty:
Article 49
Fraud
Transition 4
From law of international society to law of international community
At closing, the contract is:
Fully executed
US-China Wind Power Equipment
GATT/WTO Art. XVI:1 Subsidies and Contravailing measures: Art 3, 25.1-4 consultations concerning certain measures providing grants, funds, or awards to enterprises manufacturing wind power equipment in China
Supreme Court Review - Writ of Certiorari
Granted if 4+ justices vote to hear the case 1. All cases from State court 2. All cases from U.S. Court of Appeals
Anti-Dumping US v Viet Nam
GATT/WTO Complaint made by Viet Nam. They requested a consultation with the United States concerning a number of anti-dumping measures on certain frozen warm water shrimp from Viet Nam. The US were found to be inconsistent with the provisions of the Anti-Dumping Agreement and of the GATT. Panel recommended the US bring its measures into conformity with its obligations under those Agreements.
Lacunae
Gaps in the law (Concept based on premise that only formal legislative institutions are empowered to make legal rules
Vienna Convention on the law of Treaties
Generally seen as an authoritative source on treaties (but never meant to be completely comprehensive)
Examples of fundamental rights under the substantive due process clause
Generally, any personal activity or relationship that is associated with the privacy of the party may be afforded due process protection (marriage, procreation, abortion, family relationships, right to travel, right to vote)
Equal Protection - Alienage
Generally, laws that discriminate against non-citizens must meet STRICT SCRUTINY. e.g. denying welfare unconst.
Movement to Ban Chemical Weapons after WWI
Geneva Protocol of 1925: Prohibits the use of chemical weapons and biological weapons Since then, there have been notable violations: Italy on Ethiopia, against Kurds in Iraq, Assad and ISIS Chemical Weapons are generally considered a sublimely contemptible and reprehensible means of conducting warfare Why? Because fear of retaliation, hard to control, norms, unseen, secret, indiscriminate 2013 - Assad used on Syrian civilians "Red line" for the US
R2P Rule of Intervention
Geopolitical climate of the 1990s created the normative space for R2P to grow
Implied Warranty of Fitness For A Particular Purpose
Goods are not fit for the buyer's particular purpose Different from implied merchantability: not limited to merchants warranty created only when the buyer relies on the seller's skill or judgment to select suitable goods and when the seller has reason to know of this reliance does not require showing that goods are defective - just show not fit for purpose *Most courts also hold that buyer's particular purpose must be one other than the ordinary use of the goods*
UCC SOF- Special Manufacture [UCC §2201(3)(a)]
Goods must be specifically manufactured for the buyer and not suitable to sale for others in the ordinary course of the seller's business.
1st Amend. - Speech: Speech License
Gov't can require a license for speech ONLY IF there is an important reason for licensing and CLEAR CRITERIA. There must also be procedural safeguards .
Theocracy
Governmental system where the state and church are combined, prevalent in some Muslim nations
Easements by necessity will be
Granted based on a landowner cannot be landlocked
Examples of treaty sources
Greece vs Turkey 1978. Joint press communiqué was enough. Qatar vs Bahrain 1994. ICJ concluded that just a few minutes of a meeting could be considered a treaty if the content showed an intention to be legally binding.
RST2§79: Adequacy of Consideration
Gross inadequacy of consideration may be relevant to the application of other doctrines such as fraud, mistake, lack of capacity, duress, or undue influence. [see Dohrmann]
Federalism - 14th Amend. Privileges & Immunities
Guarantees a PERSON'S (not citizens) right to travel from one state to another.
Procedural Due Process - U.S. citizen held by American military abroad
Habeas corpus petition in federal court.
Analyzing whether CIL has been "generally practiced" (step 1 of 2)
Have international actors really followed the rule? has practice bene consistent? for a sufficient period of time?
Statement of the parol evidence rule:
Having defined the concepts of "partial integration" and "total integration," we are now ready to state the parol evidence rule. The rule has, in effect, two parts, one dealing with partial integrations, and the other with total integrations. The rule provides as follows: Partial integration: When a writing is a partial integration, no evidence of prior or contemporaneous agreements or negotiations (oral or written) may be admitted if this evidence would contradict a term of the writing. Total integration: When a document is a total integration, no evidence of prior or contemporaneous agreements or negotiations (oral or written) may be admitted which would either contradict or even add to the writing.
Who can sign a treaty?
Heads of state, Heads of governments, Ministers of foreign affairs, Ambassadors on behalf of someone else (although solely in the country in which he or she is accredited), Any other person can also sign a treaty provided that he or she produces appropriate full powers.
If a piece of property is owned by joint tenants and one of them dies
His share of the property is passed to the survive owners immediately and not to his heirs
Limitations to Drennan Rule
If offeror subcontractor makes explicit that it is freely revocable, then court will respect that in most cases. Court on application of mistake doctrine harm falls on the party who made the mistake unless the party knew or had reason to know of the mistake bid shopping [trying to find another subcontractor who will do the work more cheaply while continuing the claim that the original bidder is bound] and bid chopping [attempt to renegotiate with the bidder to reduce the price] are mitigating factors
Reaction to US torture programs
Horrible - all of the "wins" of interrogations were obtained through non-coercive means Pictures published on Salon - bad reputation for DOD DOD issues counterinsurgency manual in 2006 that state that compliance with IL is essential to military purposes Obama EO1 - compliance is necessary Obama EO2 - close Guantanamo Bay Pushback in legislative branch - almost unanimous agreement on 2015 amendment to MDAA - all interrogations must comply with field manual
Public International law
Huge field of international law covering war, human rights, refugee law, international trade, law of wars, environmental issues, global communications, space
Secular Period of Jus ad Bellum: 1550 - today
Hugo Grotius: -Created clusters of prohibition -2 assumptions: 1) Soldiers have a right to kill 2) Sometimes it is morally/legally permissible for a political community to go to war
Legal Rights (Cranston)
Human Rights=form of moral right -Differ from other rights in that they are the rights of ALL people in ALL situations at ALL times -Additionally, if it is impossible for a thing to be done, it is absurd to claim it as a right. -Traditional political and civil rights can be secured by legislation -Socioeconomic rights rest on premise of their being enough capital wealth to sustain these rights -Some rights listed under this category only apply to privileged classes (e.g. those who have jobs and therefore want paid holiday's) CONCEPT OF PARAMOUNT IMPORTANCE Human right=something no one can be deprived of w/out a grave affront to justice 1. General Positive Rights: Rights that are enjoyed and fully assured to everyone living under a given jurisdiction or constitution 2. Traditional Rights and Liberties: Lost positive rights as well as existing positive rights 3. Nominal "legal" Rights: Existing in name only 4. Positive Rights, liberties, privileges, and immunities of a limited class of persons: All the rights which are attached to membership of a given category 5. Positive rights of a single person: (e.g. Rights of the President of the United States)
The Caroline
I: G - What are the rights of self-defense during times of peace? P - Can the UK claim lawful self-defense? R: None A: None C: The Caroline Test - two criteria for lawful self-defense: 1) Necessity - must be instant, overwhelming, and leaving no choice of means, and no moment for deliberation 2) Proportionality - not unreasonable or excessive
Reference Re: Secession of Quebec
I: G- is there a right to self-determination via unilateral secession under IL? P- what is legality of unilateral secession of Quebec under DL and IL? R: Art 1(2) of UN Charter (right to self-determniation) Montevideo Constitution of Canada A: Under the Canadian Constitution (of which Quebec is a party), unilateral secession is not legal unless a referendum said yes, in which case they'll respect right to do so. Under IL, outside of extreme cases, parts of sovereign states don't specifically have the right to self-determination being interrupted. No conflict between IL and DL. C: There's no unilateral right to secession. Any obligation of Canada to negotiate with Quebec was conditional on the sovereigntists' asking a clear question within the context of a referendum
Aaland Islands Question
I: G&P - At what point did Finland attain statehood after their civil war of 1917-1918? R: 1933 Montevideo Convention, Article 1 (4 criteria to attaining statehood) A: Finland did not attain statehood until an effective government was established. During the civil war, certain elements essential to the existence of a state were lacking for a fairly considerable period. It was not until May 1918 when the civil war ended that the foreign troops began to leave the country, and Finland could have a sovereign territory and return to order and normal sociopolitical life, meeting the criteria of the 1933 Montevideo Convention. C: Finland was engaged in a war of secession, which breaks the precedent of previously uncontested claims of sovereignty. This shows that a new state formed by secession from a metropolitan state will have to demonstrate even more substantial independence before it will be regarded as definitively created. Once a state has been established, it is generally accepted that the state does not cease to exist when a previously functioning government becomes ineffective or defunct.
International Criminal Court
ICC. Established in 2002, not an official organ of the UN. Criminal jurisdiction includes genocide, crimes against humanity and war crimes. Located in The Hague.
International Covenant on Civil and Political Rights
ICCPR, ratified through the NZ BORA [1990]
International Court of Justice
ICJ. Governed by Chapter 14 of the UN Charter. Adjudicates on international civil matters, specifically between states. 66 nations have agreed to compulsory jurisdiction. Located in The Hague
Mailbox Rule [only bilateral ks]
IF YOU ARE NOT FACE TO FACE an acceptance (by offeree) will in some circumstances be treated as effective as soon as it was dispatched by the offeree [this is different than an offer and a revocation*]
State Responsibility
IS when
Precautionary Principle
IT is the principle which was adopted in the 1980's Became customary International law. It means to be safe than sorry. Take the steps needed to avoid a disaster. It was first seen in the Rio and then the EU.
Doctrine of Divisibility
If a K is divisible, a court may allow recovery for the portions that the breaching party has completed. (1) must be possible to apportion the performance of the parties into corresponding pairs of part performance (ex: supposed to paint 20 sheds, but only paint 5) (2) must be proper to treat these pairs of part performance as "agreed equivalents."
Federalism - Express Preemption
If a federal statute states that federal law is exclusive in a field, then state and local laws are preempted.
Unemploymnet Compensation Cases - Some Exemptions Required
If a person resigns from a job or refuses to accept a job becasue it conflicts with her religious beliefs, the state must pay her unemployment compensation if she is otherwise entitled
Seller Response to an Inquiry
If a seller responds to an inquiry from a customer about whether the seller has a particular quantity of items for delivery at a particular time, the seller's response with details of what she has for sale is likely to contain enough to be an offer.
Nicaragua vs. The United States of America ICJ judgement in 1986, paragraph 186
If a state acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken that rule. → Rousseau: The strongest is never strong enough to always be the master, unless he transforms strength into right, and obedience into duty. (Sounds Marxist doesn't it?)
Humanitarian Intervention
If a state is committing Crimes Against Humanity on its own people, it doesn't deserve sovereignty or international protection. It says that states may or should intervene to stop human rights violations, but does not obligate them to do so UN Art 55: All UN members agree to respect human rights UN Art 56: All states agree to uphold the norms stated in Art 55 by joint or separate action upon violators
Termination by Lapse of Time [implicit or explicit]
If a time limit set, the offer expires when the time is up RST2§41. If there is no time limit, the power of acceptance terminates "at the end of a reasonable time period." RST2§41(2).
Option Contracts created by Part Performance in Unilateral K. RST §45.
If an offer for a unilateral contract is made, and part of the consideration requested by the offer is given or tendered by the offeree in response thereto, the offeror is bound by a contract, the duty of immediate performance of which is conditional on the full consideration being given or tendered within the time stated in the offer, or if no time is stated therein, within a reasonable time. RST2§45 offer that invites acceptance only by performance not by promise Comment d: in many cases beginning of performance by the offeree carries with it an express or implied promise [by offeree] to complete performance. [so is this basically a bilateral contract?]
Total integration
If document is intended by the parties to include all the details of their agreement, it is called a "total" integration.
Termination by Death or Incapacity of Offeror or Offeree [termination by operation of law]
If either offeror or offeree dies, or if either loses legal capacity to enter the contract the power to accept is terminated. This is so even if the offeree does not learn of the offeror's death or incapacity until after he has dispatched what he intends as acceptance. RST2 §48.
Acceptance by Performance
If offeror's offer proposes that the offeree accept by performing an act, rather than by making a promise. Such an offer looks to a unilateral contract. Classical: when an offer to unilateral contract is made, it can only be accepted by full performance. See Wormser. RST2§45: if offeree begins to perform, most courts treat the offer as having become temporarily irrevocable. The offeree receives an option contract. RST2§45.
Joint tenancy:
If one owner dies his share of his interest passes to surviving owners
For tax prorations:
If taxes are not paid at or prior to closing the buyer shall pay for the current year, If taxes for the current year vary from the amount prorated at closing, the parties shall adjust the prorations when tax statements for the current year are available, The tax proration may be calculated taking into consideration any change in the exemptions that will affect the current year's taxes
Partial integration
If the document is not intended by the parties integration
Federalism - Out of State Discrimination & Earning a Living
If the law discriminates against out-of-staters with regard to their ability to earn a living, it violates the privileges and immunities clause of Art. IV unless it is necessary to achieve an important gov't purpose. e.g. commercial fishing is earning a living but elk hunting is a hobby. Except: Corporations & aliens canot use or invoke privileges and immunities.
Acceptance Method Unspecified
If the offer does not specify the mode of acceptance, the acceptance may be given "in any manner and by any medium reasonable in the circumstance" RST2§30(2) If promise OR performance invited, offeree can choose RST2§32.
A buyer is under contract to buy property and is now being relocated. Her friend offers to buy the property instead.
If the purchase contract allows, the friend can take over the buyer's contract rights by assignment
Free speech test for commercial speech
If the restriction is necessary to promote a substantial state interest and there is a "reasonable fit" between the regulation and the state interest at state, courts will generally uphold it.
Juridical sanctions
If the state causes you harm, beit physical or like property damage, they have to make reparations → Same w state-state relations.
Criminality/Public Policy
If the terms of a contract require illegal behavior, or if they go against Congress' stated goals, it will be declared void.
Exceptions from pacta sunt servanda - Vienna convention
If there are no provision it's impossible to withdraw unless: 1. it's established that the parties intended to admit the possibility of withdrawal (historical approach), or 2. a right of withdrawal may be implied by the nature of the treaty (teleological approach).
Termination by Illegality [termination by operation of law]
If you have offered to do something and it becomes illegal, then the offer terminates due to operation of law.
Federalism - Implied Preemption
Implied preemption exists when 1. If it is not possible for an actor to simultaneously comply with both Federal and State laws; or 2. A state law impedes the achievement of a federal objective; or 3. Congress evidences a CLEAR INTENT to preempt state law (e.g. immigration)
Bait and switch
Improper business practice involving luring buyers to the store with an understocked, low-priced good and then redirecting them to a more expensive product
Seller is the lender
In a contract for deed
Political question test
Is there a 1) "textually demonstrable constitutional commitment of the issue to a coordinate political power of government" and 2) what is the scope of that commitment?
Standing - No Third Parties
In general, a P cannot bring a claim on someone else's behalf.
Supreme Court Review - Final Judgment
In general, for SCOTUS to hear a case on appeal from a State's highest court there must have been a final judgment.
Draft Articles on State Responsibility (Article 2)
In order for a wrongful act to be committed by a state, it first needs to be attributed to the state and then must also breach an international law
Officious Intermeddler Defense
In the context of unjust enrichment, a person who imposes an unsolicited benefit on another in the absence of emergency circumstances that would have justified the conferral of an unrequested benefit.
The buyer and the seller have an executory contract for sale of a property. The seller says the buyer can use the property as a shooting range. The buyer checked zoning and discovered that the special use is no longer lawful in that neighborhood.
In this case then, the contract is VOID
A sewer system is NOT
Included in the descprition of land
Which of the following is a physical characteristic of land?
Indestructability
consumer
Individual who acquires goods primarily for personal, family or household use.
The promise itself creates a manifestation of...
Intent
UCC §2204
Intent to Be Bound even if some terms left open CL: a bargain where there is a manifestation of mutual assent UCC: did the parties have intent to be bound even if some terms were left open
Equal Protection - Non-marital children
Intermediate scrutiny
Equal Protection - Gender
Intermediate scrutiny - EXCEEDINGLY PERSUASIVE JUSTIFICATION
Equal Protection - Alien Children
Intermediate scrutiny.
Vienna Convention on the Law of Treaties Article 27
Internal law and observances of treaties. States cannot use their internal law as a failure to perform a treaty. Example:
Definition of a treaty
International agreement concluded between two or more subjects of international law designed to give rise to international legal rights and obligations. Subjects of international law are entities authorised by international law to conclude binding agreements → NGO's Companies are not considered as subjects, thus their treaties are contracts, and are covered by private law.
Sources of international law
International conventions, International custom, General principles of law, Judicial decisions and the teachings of the most highly qualified publicists of the various nations.
Courts and tribunals
International criminal tribunal for the former Yugoslavia -93. International criminal tribunal for Rwanda -94. International criminal court -98
Monism
International law and domestic law for a state is the same thing/are in unity. Example: The United State Constitution states that like the Constitution, treaties are also considered the law of the land, so technically, the US is a monist state. However, there is an advice & consent procedure in which the US Senate has to approve treaties by a two-thirds vote. The interpretation of this has lead to dualist renderings.
Theoretical arguments
International law doesn't fit into the definition of law. Austin's definition: A command issued by a sovereign and backed by a sanction → NO SOVEREIGN NO SANCTION.
Limitations of IL up until 1776
International law was limited to Europe until the independence of the States in 1776. At the beginning it was defined as the set of laws regulating relations btw European states. Ius publicum Europaeum. European states concluded treaties with USA and were fine with them being there and complying to full IL.
1) ordinary words, 2) intent, 3) purpose
Interpretation of treaty:
Legislative Power - Interstate Commerce
Interstate commerce includes 1. Channels (highways, waterways, & internet) 2. Instrumentalities, persons, & things 3. Activities that have a SUBSTANTIAL IMPACT on interstate commerce e.g. farmers growing wheat for personal use IS interstate commerce but violence against women is NOT.
Assignment transfers contract obligations to another party and releases the first party obligations
Is FALSE
Untreated
Is a charge for the use of money
Forced Disappearances
Is an ongoing crime. If a person's body is not found after their disappearance their case is still open. Retroactivity cannot be applied because no body knows that happened to the body. An example would be how Pinochet would make is political rivals disappear during his dictatorship.
Despite her best efforts, a licensee is unable to find a ready, willing and able buyer for seller. This would be considered a breach of contract between the broker and seller
Is false
Public International Law
Is the state vs its people. It mainly includes Human rights and makes it so the state enters into a social contract which obliges it to uphold and protect the right of its people. All treaties in the international law start with the assumption that all ALL PEOPLES OF THE WORLD HAVE THE SAME HUMAN RIGHTS. It takes into consideration the ICC and the ICJ. Examples- Diplomacy, treaties, Human Rights. Everything that is not trade and finance.
IRAD
Issue: This is the main point of the case. It is the decision that needs to be made, and it is in a form of a question. Rule: Some type of law (treaty, general principles of laws, customary international law, etc.) Application: How the law applies to the issue. It is the answer to the question. Dicta: Everything else that comes from the case. This is sometimes the most important part of the case.
The Paquete Habana
Issue: can you capture fishing vessel during wartime? Rule: What is the customary international law about whether or not you can capture fishing (non-combatant (i.e journalists, parachuters, chaplains, nurses, etc) ) vessels during wartime? Application: No, you cannot capture fishing vessels during wartime because of the citizenship rights of Cubans, international law applies as a part to the US law, and customary international law dictates that you cannot capture civilian ships and sell them as spoils of wars. Dicta: 1) US Supreme Court stated "international law is part of our law" which sets a precedent. Very monistic stance on international law. 2) Using history of how cases like these have been handled in the past (i.e using Henry IV example) is the Supreme Court judge showing that historical precedent is a way to prove customary international law. This is why this case is important.
Rome Statute to the ICC (Article 17)
Issues of admissibility; deals with inability or unwilling
Price Quotes
It is a frequent business practice for one person to request a 'quote' from another. Price Quote is typically an invitation to the buyer to submit an offer [prelim. negotiation] Sometimes, a price quote could be an offer if there is a clear quantity, addressed to a particular person, and is called the offer. However, if it reserves to the proposer the power to close the deal, it is not an offer.
Substantive Due Process - Regulatory Takings
It is a taking if the regulation leaves NO ECONOMICALLY VIABLE use for the property. i.e. the benefit to the public must be proportional to the burden imposed to the owner.
If no treaty can be found to authoritatively regulate a matter
It is by no means certain that customary international law will be able to provide a rule to fill the gap
Substantive Due Process - Public Use
It is public so long as the gov't acts out of reasonable belief taking will benefit public (including private development)
State secession
It is the Break up of an existing state. This often causes greater conflict since an established state is less likely to let their territory go. Another issue could be that the smaller state could not be considered as a state by the UN Example would be California wanting out or India and Pakistan or Catalonia and Spain
Sovereignty immunity
It is when you can do whatever you want to because your a leader of a country and are in a special bubble. Any individuals who represents the state can do whatever they like as long as it is not breaking a jus cogens norm or murdering.
Sic Utere
It is when you cannot use your own territory to harm others. For example when Canada built a factory on its US border it effected the US side of the apple farm as well. As a result it was decided that Canada would have to take into consideration the negative consequences even though they were smelting on their side of the border.
PCIJ- permanent court of International Justice
It was the precursor for the ICJ. It's decisions are still valued today and was created with the league of nations. It had general jurisdiction and would go on to deal with 29 contentious cases between States, and delivered 27 advisory opinions between 1922 and 1940. Unlike the other tribunals, PCIJ was a permanent and had its own Statute and Rules of Procedure, fixed beforehand and binding on parties having recourse to the Court. It was also able to set a constant practice and continuity in its decisions which made it have a greater influence on the ICJ
Teleological interpretation of article 33
It's evident that the convention was drafted in order to help people fearing their lives. Avoid the situation wherein German jews were refused at the US border and thus had to return and die. Thus the article must include an obligation not to reject refugees at the border. → This outcome is not ambiguous or obscure, nor does it lead to a result which is manifestly absurd or unreasonable.
How is aerial bombardment prosecuted in tribunal courts?
It's not Nuremberg and Tokyo Tribunals did not prosecute aerial bombings because it was so widespread Subject to jus in bello criteria - no specific rules, conventions, or codification Rules of practice came from the 1907 Hague Convention III
Joe is an agent at Tried and True Realty. He gets a $150,000 offer on a property that is listed for $199,500. In a recent phone conversation, the seller told Joe he would accept no less than $185,000 for the property. Knowing the seller's "bottom line," what should Joe do with the offe
Joe should present the offer to the seller
Justifications for Non Performance
Mistake mutual/unilateral
Joe is an agent at Tried and True Realty. He gets a $150,000 offer on a property that is listed for $199,500. In a recent phone conversation, the seller told Joe he would accept no less than $185,000 for the property. Knowing the seller's "bottom line," what should Joe do with the offer?
Joe should present the offer to the seller
Nicaragua v. US
Jursidication importance. Prior to this case, both Nicaragua v. US had compulsory jurisdiction. Example of State Responsibility. Demonstrates the principles of state responsibility are CIL and you can attribute acts on non-state actors (Contras) through state-controlled actions by means of funding and training. Article 8 of Drafts of Article
Procedural Due Process - Punitive Damage Awards
Jury instructions to guide discretion & judicial review to ensure reasonableness.
Form of international constitutional law
Jus Cogens
Best Efforts
K is still valid if one party's detriment is implied, but is not an explicit element of the K.
Output Contracts
K's where quantity term is measured by seller's output
Traditional Peacekeeping
Keep combatants separated to create space for negotiations
The four economic characteristics of land are: scarcity, fixity, situs and ______
Modification
Real property
Land, water, and minerals in the earth; airspace above the land; and things permanently attached to the land.
ex aequo et bono
Latin for "according to the right and good" or "from equity and conscience"
International Law
Law governing the relationships between the different nations of the world. Influences to some extent the domestic law of nations
Jus in bello
Laws once war has begun- this includes International Humanitarian law which only applies during a war as well. It prohibits the failure to to discriminate- Which means it is okay to kill a solider but not okay to kill a civilian It prohibits the need for unnecessary suffering- It has to be a proportional war which makes sense. Prohibits the means of warfare which can cause damage to the environment- which would include atomic bombs or chemical weapons
jus cogens
Laws that no state can breach, including genocide, torture, slavery and wars of aggression
The broker -
Lawyer committee drafts but does not publish forms
Which disclosure is provided to comply with federal requirements for properties built before 1978?
Lead-Based Paint Disclosure
Qiya
Legal precedents that can be applied to new fact situations by analogy (Islamic law)
If a contract is lacking ______, courts will not enforce it.
Legality
Terrorism Suppression Act 2002
Legislation produced by NZ in response to the War on Terror. Gives more power to executive to stamp out terrorist threats, allows for greater restrictions of civil liberties for the sake of national security. An example of NZ trying to meet its international law obligations, like Resolution 1373 passed by the UN security council which called on nations to adopt anti-terrorist legislation.
Climate Change Response (Emissions Trading) Act 2008
Legislation setting up the emissions trading scheme. Emission credits can be earned by planting trees which absorb carbon. Large emitters have to purchase more carbon credits to emit more greenhouse gases. Credits cost money providing an incentive to reduce emissions, these can also be sold. The scheme is closely linked to the Kyoto Protocol and is an example of NZ attempting to adhere to international obligations. Agriculture was exempt.
Internal dimension of sovereignty
Monopolisation of powers of government. Jean Bodin. De Republica (1576). Defined sovereignty as Summa potestas. The supreme and absolute power that rules the state. Base principle of domestic law.
The Koran
Principle religious text of Islam. A divine revelation handed from Allah to Muhammed. Sets out the rules for regulating society
No Sect Preference
Lemon Test: govt action valid if; (i) has a secular purpose (ii) has a primary effect that neither advances nor inhibits religion; and (iii) does not produce excessive government entanglement with religion
Usury
Lending money at a rate higher than the state's maximum allowable rate
Texas is a
Lien theory state
When real estate taxes are not paid on time a
Lien will be filed by the taxing authority
1st Amend. - Speech: Campaign Contributions
Limits on contributions to election campaigns are ALLOWED, BUT Expenditure limits on campaigns are NOT allowed.
Attribution
Linking actions of one party to another party. This is especially important in international law because int'l law (i.e ICJ) only deals with states as actors, so it is essential to connect actions of non-state actors to states. In the discussion of state responsibility.
A buyer defaults on a contract and the seller chooses to receive the earnest money. This is an example of:
Liquidated damages
Rome Statute to the ICC (Article 5)
List the crimes that the court has jurisdiction over. a) the crime of genocide, b) crimes against humanity, c) war crimes, & d) the crime of aggression
Statute of the ICJ Article 36
List the various methods of jurisdiction. 1) compulsory jurisdiction - states accept ahead of time the ICJ's jurisdiction. Some states have agreed to it with the restriction that they will accept compulsory jurisdiction only if the other state has too. 2) Voluntary jurisdiction - two or more states that have an issue can agree to meet with the ICJ to solve the dispute, and they agree to abide by the decision made by the ICJ. This is usually dealt with when land disputes arise. 3) Treaty referral jurisdiction - if a dispute arises from states that have ratified a certain treaty, then, they will submit to the treaty's provisions. Example: In the case of Nicaragua v. the US, the US withdrew compulsory jurisdiction after the case was brought against them. It shows that you can withdrew that jursidiction after the fact.
Treaties of international criminal law
London Agreement -45 → Establishes the concept of crimes against humanity. Genocide convention -48 → Establishes what a genocide is and how to commit one.
Enforcement (ties in with Austin) (D'Amato)
Lots of crimes in domestic law aren't enforced, but we'd still call domestic law law. There just has to be the possibility of enforcement. In cases where the state loses against an individual, the individual, following Austin, would have no way to enforce any sanctions against the state since it, by definition, holds the gewaltmonopol. The state still comply though, because it wants to, it has realised that the laws are there for a reason and that reason is to maintain public order, and international law follows a similar pattern.
S.S. Lotus
Lotus principle; extreme positivism; opino juris but not state practice
Express Conditions
MUST BE STRICTLY COMPLIED/STRICT PERFORMANCE UNLESS YOU GET AN EXCEPTION central obligation of the contract
The difference between a TREC-promulgated form and a TREC-approved form is that promulgated forms
MUST be used and approved forms MAY be used
Treaty termination - material breach example with South Africa and the mandate for South Western Africa (Namibia)
Mandate for South-West Africa was conferred to the Union of South Africa under the supervision of the council of the League of Nations. 1948 → apartheid. Extended it to Namibia. Apartheid can be seen as a breach of article 2 of the mandate. The mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the Territory subject to the present Mandate. → League of Nations terminated the mandate bc of this breach (1966), and the ICJ declared the mandate illegal in 1971. Ended in 1990.
UDHR article 7
Mandatory anti racist education (Can't interfere with private conduct)
Merger Clause
Many writings contain a "merger" clause, i.e., a clause indicating that the writing constitutes the sole agreement between the parties. Such a clause will conclusively establish that the document is a total integration, unless the document is obviously incomplete, or the merger clause was included as the result of fraud or mistake, or there is some other reason to set aside the contract.
A voidable contract
May be disaffirmed by one party
Damage or destruction of a property under contract prior to closing:
May result in termination of the contract
Exception to SOF- Part performance
May take a contract out of SOF if is asking for specific performance (equity) Unequivocal referable test: Performance must lead an outsider to naturally and reasonably conclude that the contract alleged actually exists. Consider 2 Factors: (1) Has party seeking enforcement obtained possession of the property (2) Whether the party has made valuable improvements to the property Beaver v. Brumlow: Mere payment of money is unlikely to be enough RST doesn't use unequiv. test - Action in Reliance; Specific Performance RST §129: cannot use SOF if it is established that the party seeking enforcement, in reasonable reliance on the K and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can only be avoided by specific performance.
International (i.e external) dimension of sovereignty
Means independence. Emmerich de Vattel, Le droit des gens, 1758. Any Nation which governs itself, in whatever manner, without dependence upon a foreign state, are sovereign. UN Charter, article 2, paragraph 1. No matter the size of a state, no matter its power, they are equal in the eyes of the law. Equal right to independence. Base principle of international law.
If real consent is missing, there is no...
Meeting of the minds
Security Council
Most important part of the UN. Kind of like the executive branch. It has 15 members with 5 permanent (China, France, Russia, UK, US) and 10 rotating which have a 2 year rotation. This part is key to global security and can work well if not for the 5 permanent members. Since even one veto can stop a decision from happening. Their resolutions are binding law and is responsible for international peace. They have the power to settle disputes and can freeze assets etc.
International Covenant of Economical, social and cultural Rights
Mostly positive rights health care religion food education Discrimination Property work shelter self-determinism nourishment security
is Writing Sufficient
Must be the signature of the party against whom the contract is enforced Agency- does the person signing have the authority? Express authority Implied authority- unspecified authority granted as a consequence of job description Sole proprietorship potentially different from corporation (what officers can sign?) Depending on jurisdiction, sometimes seller's trademark may constitute signature
Traditional Rule
Must create - Legal detriment to the promisee OR legal benefit to the promisor; Actually the legal detriment and benefit usually occur at the same time.
Defamation of public figures
Must prove that the defendant acted with actual malice eg. (i) knowledge that the statement was false or (ii) reckless disregard for the truth or falsity **public figures are entitled to direct discovery into the state of mind and communications of editorial staff
The offer
Mutual understanding between parties; 1. Manifestation of Intent (Preliminary Negotiations vs. Intent to Offer); 2. Definite; 3. Communication
Consideration in bilateral k
Mutuality of Obligation
North Atlantic Free Trade Agreement
NAFTA
North Atlantic Treaty Organisation
NATO
A sales contract establishes the legal rights and obligations of the buyer but
NOT the seller is FALSE
Executive Power - Treaties
Negotiated by the President and effective once ratified by the senate
Executive Power - Pardons
President can pardon anyone accused or convicted of a FEDERAL CRIME, except someone impeached by the House of Representatives. *No civil suits.
Example of Israel and Lebanon
Netanyahu argued that the by Lebanon proposed line contradicted the treaty between Israel and Cyprus, but more so the treaty concluded between Lebanon and Cyprus. The latter agreement was never ratified bc the Lebanese parliament never decided on it. Therefore pacta sunt servanda doesn't apply. The treaty is not on force. Israel and Cyprus started at point 1, not point 23, thus the Israeli and Lebanese line should logically start there too. But no. Res inter alios acta. The treaty between Israel and Cyprus cannot impose any obligation on Lebanon.
Estates are generally created by deed or lease and
Never by a bill of sale
When a party is considering consulting an attorney for advice in a transaction an agent should:
Never discourage the use of an attorney
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States)
Nicaragua charged the US with violations of customary and treaty law by military and paramilitary activities against Nicaragua. Claimed that funding the contras and attacking nicaraguan storage facilities, pipelines, etc violated Article 2(4) of the UN charter and CIL. US justified its actions as acts in collective self-defense of El Salvador and other central American states allegedly threatened by Nicaragua US invokes Article 1(2) of UN Charter which guarantees self-determination Collective self defense would require the state concerned to have been victim of an armed attack, also the state attacked must be the one to declare that it had been attacked, not the US For one state to use force against another because that state committed wrongdoing against a third state is only lawful if the wrongful act was an armed attack
Legislative Power - Police Power
No general police power, EXCEPT: 1. M ilitary 2. I ndian reservations 3. L ands (federal) 4. D istrict of Columbia
Shue Argument for inherent relationship between human rights and Socioeconomic rights
No one can fully enjoy any right that he is supposed to have if he lacks the essentials for a reasonably healthy and active life.
Treaty withdrawal
No overarching authority on the international level, so the main source of international law is the will of states. This will can change, and if states are sovereign we should also accept these changes in will. → But whaddabout pacta sunt servanda? You need to comply with a treaty in force. → Theoretically, then, withdrawal isn't allowed.
modern doctrine and Charitable Subscriptions
No reliance necessary in charitable subscription case: Although in most contexts promissory estoppel will apply only when the promisee relies to his detriment, the courts often do not impose such a detrimental reliance requirement where the promise is a charitable subscription, i.e., a written promise to make a charitable contribution. Thus § 90( 2) of the Second Restatement states that "a charitable subscription ... is binding under subsection (1) [which sets forth the promissory estoppel doctrine] without proof that the promise induced action or forbearance."
Substantive Due Process - Contract Rights
No state or local gov't (not feds) shall impair the obligations of contracts 1. Interference with private K's using INTERMEDIATE SCRUTINY 2. Interference with federal gov't K's must meet STRICT SCRUTINY.
Federalism - Art. IV Privileges & Immunities
No state or municipality may deny citizens of other states the privileges and immunities it AFFORDS ITS OWN CITIZENS without SUBSTANTIAL JUSTIFICATION e.g. can't require residency to sit for the bar
Refugee convention article 33
No state shall expel or return a refugee to a frontier where his life or freedom would be threatened due to his race, religion, nationality, membership of a particular social group or political opinion. Principle of no "refoulement". It's unclear if the states are allowed to reject refugees at their borders.
Are treaties subject to form?
No, CONTENT IS EVERYTHING
Can a treaty in force have been invalid from the start?
No, it cannot have entered into force if it was invalid, and invalidity must therefore not be confused with treaty termination.
Are signatures enough to give consent?
No, not always. Ratification is often necessary.
NGO
Non-governmental organization. Examples: Amnesty international and Green peace, Red Cross
Vienna Convention on the Law of Treaties Article 28
Non-retroactivity of treaties. Treaties only apply to circumstances after the treaties are entered into force. Treaty that created the ICCs Example:
Vienna convention of 1980
On contracts for the international sale of goods. Rules regulating the international sale of goods. Solves warranty issues for goods purchased or ordered from abroad for example.
Procedural Due Process - Harm to Reputation
Not a loss of liberty, therefore not a taking.
McCleskey v. Kemp
Not a violation of 8th amendment when purposeful discrimination cannot be proven
Pragmatic argument for why int. law isn't law
Not law bc it's not respected by states. How Nations Behave: "Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time." States only observe international law when it's convenient, so international law is useless bc of the fact that it's not properly observed.
Do we respect law because we fear sanctions?
Not necessarily: During revolutions n stuff people breach law despite the fact that there are coercive sanctions. → We respect law bc otherwise there wiLL Be A STAtE Of NaTURE!!1!!11! A legal rule is obeyed when it's considered fair and just by its addressees. → Law can exist without coercive sanction because of the fact that there are other forms of sanctions.
1st Amend. - Speech: Nude Dancing
Not protected
1st Amend. - Speech: Draft Card Burning
Not protected * Gov't has a need to mobilize troops
Substantive Due Process - Abortion
Not strict scrutiny. A pregnant woman has the right to choose to terminate her pregnancy without an undue burden from the gov't. e.g. 24 hour waiting period is not an undue burden, but spousal notice/consent is an undue burden.
Purpose of Group Rights (Ignatieff)
Not the protection of the group, but the protection of the individuals who compose the group--therefore, group rights are needed to protect individual rights (e.g. right to speak your own language)
Procedural Due Process - Adult Institutionalizing
Notice & Hearing
Procedural Due Process - Parental Custody Termination
Notice & Hearing
Procedural Due Process - Welfare Benefits
Notice & Hearing
A seller of coastal property abutting tidally influenced water must provide the ________
Notice Regarding Coastal Area Property
A seller of coastal property abutting tidally influenced water must provide the ________.
Notice Regarding Coastal Area Property
Organisation for Economic Cooperation and Development
OECD
State practice: duration and uniformity
Objective element of customary law
Four elements of a contract
Offer and acceptance Consideration Duties and enforcement Defenses
Counter Offer
Offer made by an offeree to his offeror relating to the same matter as the original offer and proposing a substituted bargain differing from that proposed by the original offer. The offeree's power of acceptance created by an offer will be terminated when there is a counter offerRST2§36. A counter offer is simultaneous rejection + new offer.
Termination by Rejecting Offer
Offeree expressly rejects OR counteroffer RST2§36.
Method of Acceptance
Offeror is the master of his offer and may prescribe the method by which it may be accepted. (even the right to suspend mailbox rule)
Custom
Oldest form of international law
"Partial" vs. "total" integrations:
Once it is determined that a document is an integration (i.e., a final expression of agreement), it must be determined whether the parties intended that integration to contain all of the details of their agreement, or only some of these details. If the document is intended only as a memorandum of the agreement, it may state only the most important details, and leave the others to the parties' recollection.
third party beneficiaries
One for whose benefit a promise is made in a contract but who is not a party to the contract
Aerial Bombardment
One of the first areas of war that politicians sought to restrain through law Why? Because it almost necessarily involves the death of civilians and civilian infrastructure
A voidable contract may be disaffirmed by
One party to the contract
Voidable contracts
One party to the contract has right to avoid legal obligation
Void agreement
One that neither party can enforce, usually because the purpose is illegal or one of the parties had no legal authority
1968 Non-Proliferation Treaty
Only 4 states not party: Israel, India, Pakistan, NK Four Tenants: 1)Non-nuclear states at the time of signing are prohibited from possessing, manufacturing, or acquiring nuclear weapons 2) The 5 states legally allowed to have nuclear weapons (5 PMs) agree not to assist non-nuclear states in any way to obtain them 3) All signatories committed to total nuclear disarmament 4) States can use nuclear energy for peaceful purposes
Treaty reservation
Only applies to multilateral treaties. Reservation is a unilateral statement made by a state, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty.
Privileges and immunities clause
Only applies to those privileges that are "fundamental" such as the right to travel, right to own property, right to conduct business. A state may discriminate against a nonresident with respect to a protected fundamental right only where its reasons are "SUBSTANTIAL" and the difference in treatment bears a close relationship to the reasons. Does not apply to non-fundamental rights! Do not confuse with the 14th amendment!
Unilateral Contract
Only one promise (a promise in exchange for performance); once performance has been made, the other party's duty arises to fulfill his/her promise
Separability of treaty provisions.
Only the article at stake that comes to an end, unless it's vital to the consent of all state parties to the treaty. (In the treaty of Utrecht Article 9 wasn't vital for the UK, but Spain considered it essential, thus revoking the whole treaty, including the secession of Gibraltar. → Racial discrimination one of the few things the international community can decide that it is indeed a jus cogens norm.
Cease and desist order
Order requiring that certain improper conduct be stopped
Standing - Organizations
Organization may sue for its members if 1. individual members would have standing 2. the interests are germaine to the organizations purpose 3. neither the claim nor relief requires participation of individual members.
Semi-civilised states
Ottoman Empire, ME, Persia, Siam, China
Analyzing whether CIL has been "accepted as law" (step 2 of 2)
Out of a *legal obligation* or necessity or rather merely out of courtesy, neighborliness, or expediency
Opinio Juris
Out of a sense of legal obligation
Unconscionable Agreements
Outcome is grossly unfair to an innocent party
Article 26 of VCLT
Outlines consent in treaties
A business organization MAY NOT
Own property as a tenancy by the entirety
A business organization may NOT
Own property as a tenancy by the entirety
Standing - Injury in Fact
P must allege and prove that he or she has been injured or will be imminently injured. - no ideological objections
Standing - Causation
P must allege and prove that the D caused the injury
Standing - No Generalized Grievances
P must not be suing solely as a citizen or tax payer
Mootness
P must present a LIVE CONTROVERSY - If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot - non-frivolous money damages claim will keep the case alive
agreements must be kept (treaties are based on good faith)
Pacta Sunt Servanda
Vienna Convention on the Law of Treaties Article 26
Pacta Sunt Servanda. Known as the "good faith" clause. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. In other words, states need to be actively working to implement and uphold the treaties that they are a party to. Example:
State of Palestine v. US
Palestine files complaint to top UN court over US embassy move to Jerusalem, Israel
Modern Approach to PER
Parol Evidence May be used to determine meaning the parties intended for K Terms Judge determines whether term is ambiguous by looking at parol evidence (Corbin and Restatement approach)-- must hear extrinsic evidence to see if writing is "reasonably susceptible" to different interpretations If so, weigh parol evidence to see if relevant (exclude that which varies/ contradicts writing) Evidence that P's interpretation was "reasonable" and, thus, admissible. Substantial bad faith claim Release drafted in vague language Release classified as "uninsured motorist coverage" Size of claim suggests he would not trade for $15,000 release
Receiving liquidated damages releases both
Parties from a contract
voidable contract
Parties may elect to avoid their contractual obligations by raising one or more defenses. Under the influence of drugs or alcohol, infancy, mental illness, disability.
Letter of Intent as 'binding parties to negotiate in good faith'
Party's execution of LOI binds parties to negotiate in good faith attempt to reach agreement on k, but parties reserve right to terminate negotiations if unsuccessful possible to have a breach but middle ground approach reflects the actual intention of the parties: not completely free (to withdraw for any reason whatsoever) nor completely bound (should they later be unable to agree.)
Example of jus cogens superveniens - Treaty of Utrecht
Peace treaty in which article 9 stated that no Moors or Jews shall be granted residency in Gibraltar, or granting refuge to Moorish ships in the harbour. → Because of the modern ridiculousness of racial discrimination, ie new jus cogens, article 9 was terminated. → UK are thus not bound by the obligation to deny refuge or residency, and subsequently cannot invoke this article to discriminate against these groups.
Unlawful Combatants
People or Groups that function outside the state and international law. They are not protected by the Geneva convention and common article 3 because if they are not going to follow the law then why should they get protection under it. It is one of the oldest forms of law since an example would be piracy and Terrorism
Default is failing to
Perform in a contract
Notice Requirement: Do you have to notify offeror of performance?
Performance creates a unilateral k. 3 views: (1) MINORITY notice not required unless requested by the offer (2) MAJORTY [RSTS] No notice unless required BUT offeror's obligation will come to an end 'be discharged' if notice of performance is not given within a reasonable time in a limited set of circumstances... If offeree has reason to know that offeror has no adequate means of learning of performance with reasonable promptness, the duty of offeror is discharged unless offeree exercises due diligence to notify the offeror or the offeror learns of performance within reasonable time or the offeror indicates notice not necessary (3) MINORITY same as (2) but if notice is required there is no contract until notice of performance is sent.
The four categories of leasehold estates are: estate for years, tenancy at sufferance, tenancy at will and ________.
Periodic tenancy
Enacting zoning ordinance is an example of
Police power
________ is the right of the government to regulate and control the way land is used.
Police power
Battle of the Forms UCC
Policy: UCC attempts to prevent a party from slipping out of the contract as she was frequently able to do using the mirror image rule in common law. 2 Goals: (1) determine whether k is formed AND (2) if k formed, what terms of k there are.
2209(4) 's bases for thinking about how to validate a failed
Posner (reliance), [minority] Easterbrook (subtraction), [majority]
Must there be actual hardship? [SPLIT]
Posner/some JDs: the fat that the party agreed to settlement because of a desperate need of cash could not be the basis for duress unless the other side had caused the financial hardship Few courts: have held (sometimes implicitly) that it is enough that one party takes advantage of the other's dire circumstances without having caused the hardship
Procedural Due Process - Terminating Social Security Benefits
Post-termination Hearing
Postmodern Relativism (Igantieff)
Postmodernism, also spelled post-modernism, in Western philosophy, a late 20th-century movement characterized by broad skepticism, subjectivism, or relativism; a general suspicion of reason; and an acute sensitivity to the role of ideology in asserting and maintaining political and economic power.
Progressive Development of international law
Preparation of draft conventions on subjects which have not been sufficiently developed into the practice of states
POWs
Prisoners of War are persons who have fallen into the power of the enemy under various categories as defined by The Geneva Convention Relative to The Treatment of Prisoners of War under Article 4.
________ is evidence an individual has of his or her right to possess land.
Probate
negotiation, signing, domestic ratification (2/3rds of senate
Process of creating a treaty
1923 Draft Rules of Air Warfare
Prohibited bombing for the purpose of terrorizing civilians, harming them, or destroying non-military targets Never ratified by any state Why? States don't want to be the one to unilaterally restrict themselves
1907 Hague Convention
Prohibits poisons and poisoned weapons Bans warms, projectiles, and other materials intended to cause unnecessary suffering Provisions were too vague in WWI WWI - Germany was the first to use chemical weapons in 1915 in Second Battle of Ypres - mounted 5000 cylinders of chlorine gas and opened them to French front lines Germans said it was legal because it wasn't a projectile (not launched) Allies responded with their own chemical attacks Cyanide, chlorine, and mustard gas
UDHR article 4
Prohibits racist hate speech
Rules
Public international law (covers 1-3), foreign national law (covers 5), private international law (att not really international, covers 5)
Intra-Family Promise
Promissory estoppel may be used to enforce if the promise is reasonably and detrimentally relied upon Ordinarily, promises made by one family member to another are unenforceable, either because the parties lack an intent to contract and/ or because there is no consideration since the promise is not bargained-for. The promissory estoppel allows the promisee some legal remedy if he relies on the promise to his detriment. However, most courts dont give a full contractual measure of damages (i.e., "lost profits") but merely recompense out-of-pocket losses.
A ________ is the borrower's unconditional promise to repay the lender.
Promissory note
The broker-lawyer committee drafts but does not
Promulgate forms for mandatory use by licensees
Intangible property
Property you cannot touch, like rights to perform under a contract
Results of Human Rights Reports
Proposed: -West cuts off aid -condition assistance -impose sanctions -and/or publicly denounce the unacceptable conduct of the third world state
1st Amend. - Speech: Anonymous Speech
Protect Exception: Ballot petitions
Negative Rights
Protect individuals from interference
1st Amend. - Speech: Flag Burning
Protected
1st Amend. - Speech: Cross Burning
Protected UNLESS there it threatens or intimidates others.
Geneva Convention II
Protects wounded, sick, and shipwrecked military personnel at sea during war
1977 Additional Protocols
Protocol I: expands the protection for the civilian population and military and civilian medical workers in international armed conflicts Never submitted to Senate Protocol II: applies to victims of internal armed conflicts Civil wars, reflective of geopolitical realities at the time Senate never ratified US signed but did not ratify
Evidence of title, payoff statement are
Provided by the seller and given to escrow agent before closing
The Role of Contract Law
Provides a mechanism to deal with others
Accede
Provision in most treaties as to when they begin to be binding--if country joins after the binding date, they simply "accede"
1st Amend. - Speech: Defamation
Public Official, Candidate or public figure: Falsity & malice Private Figure & Public Concern: Falsity & Negligence Private Figure Only: Falsity only
The person who prepares an abstract of title for a parcel of real estate searches the
Public and then summary the events and proceedings that affect the title
3 questions:
Question 1: Does K Fall within SOF? Question 2: Is the K Reflected in Writing Sufficient to Satisfy SOF Question 3: Does This Fall Within One of the Exceptions to SOF that Permits Enforcement Despite Non-Compliance
A ________ is a deed with no guarantees or warranties.
Quitclaim deed
material breach
RST (2d) §237 treats "material breach" as in effect the nonoccurrence of a (constructive) condition to the other party's duty to render any performance not yet due, and performance by that party may therefore be suspended until the breach is cured. The materiality of a breach is to be decided in light of the factors listed in RST (2d) §241. a partial breach produces a right to damages only for the actual harm that has resulted to date, not for future harm
total breach
RST (2d) §242 "total breach" has the effect of discharging the other party's remaining duties of performance and permitting that party to proceed immediately to pursue a claim for damages from total breach (§236(1)). Indicates that the totality of a breach will depend on the existence of an uncured material breach, based on the factors listed in §241, plus two other considerations: (1) the extent to which further delay appears likely to prevent or hinder the making of substitute arrangements by the nonbreaching party, and (2) the degree of importance that the terms of the agreement attach to performance without delay. RST (2d) §243(4), after a total breach, the injured party is entitled to recover not only actual damages accrued as a result of the breach but also any future damages that will reasonably flow from the breach;
Reasonable Expectations Doctrine (CJ Fertilizer Burglar Case)
RST § 211 Test: Buyers entering into Adhesion Ks are not bound to unknown terms which are beyond the range of reasonable expectations. Non-dickered terms must frustrate reasonable expectations of adhering party. They must be: Bizzarre or oppressive, Eviscerates the dickered terms, OR Eliminates dominant purpose of K
A lack of a reasonable alternative
RST §175: Indicates a number of possible reasonable alternatives availability of legal action, alternative sources of goods etc
Actual inducement of the contract by threat
RST §175: improper threat must induce the making of the contract meaning that the threat must substantially contribute to the manifestation of assent
A wrongful or improper threat
RST §176: defines threats to commit a crime or tort and threats of criminal prosecution Threats to engage in litigation are not per se improper, but can be if the circumstances show that the threat was made in bad faith Totem uses "Wrongful" while RST uses "improper"- term doesn't matter- need not be illegal
Exception to SOF- Promissory Estoppel
RST1 § 178 reliance on promise of a writing. 2 distinct situations in which enforcement of an oral contract could be based on an estoppel to assert the statute of frauds. • p detrimentally relied on the d's misrepresentation that a writing had been created that would comply with the statute • p relied on a promise by the d to make such a memorandum. Recognized by RST §139: reliance on oral promises -says that application of this doctrine depends on # of factors including the adequacy of other remedies, whether the reliance was substantial, reasonable and foreseeable. • Even if exception is recognized does NOT mean that court is going to enforce the contract. §139 directs courts to consider whether other remedies like restitution might be available in the circumstances. EXAMPLE: where p has rendered partial performance to the d pursuant to a contract unenforceable because of SOF, court will ordinarily grant d restitution for the reasonable value of partial performance.
Sanctions in international law
Security council: centralised countermeasures. Decentralised countermeasures if states feel violated.
Affirmative action
Racial classifications can be used without violating the EPC when they are part of an affirmative action plan to assist a previously disadvantaged minority group in business. Race and sex may be considered to cure past discriminations so long as as there is an identifiable minority group.
Equal Protection - Age Discrimination
Rational basis
Equal Protection - Disability
Rational basis e.g. Zoning to prevent home for mentally disabled still unconst. under rational basis (Texas)
Equal Protection - Sexual Orientation
Rational basis (though this may be changing)
Equal Protection - Wealth Discrimination
Rational basis - poverty not a suspect class
Charming Betsy Principle
Read the treaty in a manner so that it does not violate TNL. And then if it can't be reconciled, the First In Time Rule applies. CHECKc
The statute of guards requieres
Real estate contracts to be in writing to be enforceable
UCC §2309
Reasonable notification should be the minimum amount of protection afforded to either party upon the termination of an ongoing sales agreement. [history]When such reasonable notice is not given, a cause of action for damages may exist. UNLESS EXPRESSLY STATED UPON HAPPENING OF AN EVENT [surrogate notice]
Capacity
Refers to the legal ability to create a contract
Kelley's take on Liberty Rights + argument concerning socioeconomic rights
Reflect an individualist political philosophy that prizes freedom Rights to liberty vs. Rights to goods There is no universal and nonarbitrary standard for distinguishing need from luxury Depends on the wealth of each individual nation
UCC2-602(1): Rejection
Rejection must be within a reasonable time after delivery or tender. Ineffective unless buyer seasonably notifies the seller
Termination through Indirect Revocation [termination by operation of law]
Reliable 3rd party indicates to offeree that offeror is no longer willing to contract. Dickinson v. Dobbs.
Personal property that is to
Remain with the real property is addressed in an addendum
Quasi-suspect classifications
Requires a substantial relationship to an important government interest
Mirror Image Rule
Requires that acceptance be on precisely the same terms as the offer
Reservations
Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are unilateral statements purporting to exclude or to modify the legal obligation and its effects on the reserving state. These must be included at the time of signing or ratification, i.e. "a party cannot add a reservation after it has already joined a treaty".
The SAFE Act mandated the term ________.
Residential Mortgage Loan Originator
If a minor disaffirms a contract after receiving benefits, _______ must be paid for the benefit.
Restitution
Kiobel v royal
Restricted scope of ATS
Terminating an Offer
Revocation, rejection, operation of law
CIL and Self-Defense
Right of self-defense is one of the oldest legitimate reasons for force (Aquinas and Aristotle acknowledged this) The Caroline
Social and economic rights in UDHR (22-27)
Right to work + dignified conditions Trade unions Rest and leisure Adequate standard of living Social insurance against destitution Right to education
Human Rights
Rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. It is universal and the states have to uphold these rights
Example of multilateral treaty
Rome Statute enters into force the first day of the month after the 60th day following the deposit of the 60th instrument of ratification, acceptance, approval or accession. → Some treaties are still not in force, so even the states that have ratified it aren't bound by it.
Exceptions from pacta sunt servanda - treaty provision
Rome statute includes a provision for withdrawal, which then would take place a year after reception of the receipt of notification. (the treaty is often still valid for a lil while → cooling off period)
Consideration versus condition
Rule: The bargain theory of consideration does not actually require that parties bargain over terms. What is required [for consideration to exist] is that the promise and the consideration be in 'the relation of reciprocal conventional inducement, each for the other.' Consideration must be mutual (quid pro quo): the promise must induce the detriment and the detriment must induce the promise Conditioned gift: promisor had no particular interest in the detriment of the promise. Even though the promisee suffered a detriment induced by the promise, the purpose of the promisor was not to have the promisee suffer the detriment because she did not seek that detriment in exchange for her promise (Tramp)
Natural law
Rules of conduct discoverable by reason (nonconsensual)
Soft international laws are:
Rules which are neither strictly binding nor completely void of legal significance (Often resolutions of international organizations)
Jake (Seller) and Sarah (Buyer) entered into a contract for the sale of Jake's personal residence. In the contract, Jake promised to deliver a seller's disclosure of property condition within 5 days of the effective date of the contract. Jake never delivered the disclosure as promised. Which of the following statements is true?
Sarah has the right to terminate the contract and receive a refund of earnest money prior to closing
Jake (Seller) and Sarah (Buyer) entered into a contract for the sale of Jake's personal residence. In the contract, Jake promised to deliver a seller's disclosure of property condition within 5 days of the effective date of the contract. Jake never delivered the disclosure as promised. Which of the following statements is true?
Sarah has the right to terminate the contract and receive a refund of earnest money prior to closing (Page 24)
Valid Contract
Satisfies the law's requirements
Statute of the ICJ Article 34
Says that only states may be parties to the court and that only a state may file a case to another state. This is why draft articles of state responsibility is very important, since you have to attribute the action or even to the state.
Article 38, ICJ Statute
Scholarly writing and court cases
A person who prepares an abstract of title
Searches the public records that may affect title summation
Second step in the procedure of ratification
Second, a head of state will sign an instrument of ratification, i.e a document where a state explicitly confirms its approval of the treaty. Exchanging instruments of ratification if its bilateral. Instrument is transferred to the depositary of the treaty if it's multilateral.
Secular
Secular - Term meaning not connected with spiritual matters or religion
A contract for deed is a method of selling real estate where the
Seller is also the lender
Elements for Express Warranty Under UCC
Seller may provide basis for express warranty by making a representation about the goods, giving a description, or displaying a sample or model Reliance (1) Pre-code law: buyer had to prove reliance (2) Unclear if reliance is required under the code UCC §2-313 an affirmation, promise, description, sample, or model will amount to an express warranty if it is part of the basis of the bargain but does not define what basis of bargain means Comment 3: once seller has made an affirmation of fact about the goods- no particular reliance on such statements needs to be shown in order to put them in agreement
Implied warranty of title
Seller warrants that he or she has title to the goods and the right to transfer them; this is implied by law
Implied warranty of merchantability
Seller warrants that the goods are fit for the ordinary purposes for which such goods are used; this is implied by law
Implied warranty of fitness for a particular purpose
Seller warrants that the goods delivered to the buyer are reasonably fit for the stated purpose; applies where the buyer relies on the seller's skills to provide goods for a specific purpose; this is implied by law
According to the Deceptive Trade Practices Act (DTPA), brokerage falls under the category of ________.
Services
Chapter 5 of the UN Charter
Sets out the powers of the UN Security Council
Chapter 1 of the UN Charter
Sets out the purposes and principles of the UN. Affirms the sovereign equality of all states and restricts the UN from intervening in domestic matter unless in extreme circumstances. Members commit to the pursuit of peaceful solutions to global problems.
Things Insufficient for Consideration
Sham Promises Nominal Consideration Mere recital of consideration not enough Forbearance of an illegal activity (drug use) Reliance alone is not consideration Promises under seal Moral Consideration Past Consideration is No Consideration Pre-existing duty Illusory Promise
Community definition
Sharing common interests and values and should be committed to pursuing these interests and put values into practice.
Destination contract
Shipping contract governed by the UCC where the seller promises to deliver specified goods to the buyer's destination. The seller retains title to the goods until delivery is complete.
Shipment contract
Shipping contract governed by the UCC where the seller's obligation is complete when s/he passes the goods to the common carrier for delivery. In this situation, if the goods are damage during shipment, the seller is not held responsible.
UCC SOF- Promissory Estoppel Exception
Should §139 RST2 be applicable in the UCC for sale of goods? Majority Rule: YES by virtue of UCC1-103(b) Minority Rule: the exceptions specifically listed in §2201 preclude promissory estoppel argument and any other exceptions from being applicable. Promissory Estoppel applies notwithstanding SF (Restatement §139: worth looking up) Move to Alaska was significant injustice Enforcement of such cases usually turns on the extent of the reliance Promise of written K is powerful § 139: When D can pay P for partial performance or reliance, this remedy is preferred.
Implications of Montreal protocol
Shows how cooperative international law operates. Shows a common goal. Allocates tasks. Takes into account the capabilities of states. Shows the more complex structure of international law, transition from negative to positive obligations.
If a seller decides not to sell after a contract has already been
Signed by the buyer may institute a suit for specific performance
Signatory
Signed, but not ratified
Dualism
Signing treaty: executive (one off). Ratifying/implementing: legislature. Executive is in charge of foreign law while legislature is in charge of domestic law
Listing agreements andbuyer agency agreements ae
Similar because they are both employment contracts
Estate for years, estate from period to period, and estate at will are
all examples of leasehold estate
Offeree Reliance on Unaccepted Offer
Situation: no option contract. Nonetheless, offeree delays accepting, in the belief that the offeror will not revoke his offer, and in the mean-time takes various actions in reliance on her expectation that offer will remain open. Old, Minority Rule: Promissory estoppel claim must be based on a clear and definite promise Majority Rule Pop's Cones/Hoffman Case [low bargain power]: a promise or offer will be sufficient for a promissory estoppel claim without any heightened requirements of proof.
Information needed for a listing agreement generally includes
Size, type, age, construction of the house and required disclosures regarding property conditions
Second-Generation Rights (Waldron)
Socioeconomic Rights
Reasonable Notice Rule [question of Fact] Factors to Consider ...
Sofa Gallery v. Stratford (1989) Time needed to recoup investment Close out of product line Minimize losses UCC § 2-309 comment 8 Whether there has been sufficient or reasonable time to find a substitute arrangement Retail Associates v. Macy's (2001) Usage and trade Course of dealing
Declarations/Resolutions
Soft law (as hard as you get in the soft world)
A(n) ________ is a business venture that is owned by one individual.
Sole proprietorship
Third-Generation Rights (Waldron)
Solidarity Rights of communities and whole peoples rather than individuals (e.g. minority language rights, right to national self-determination, etc.)
Writing
Some agreements must be in writing and signed by both parties in order for the contract to be enforceable.
Size type and age are
Some items of information needed for a listing agreemtn
Weakness of European Convention for the Protection of Human Rights
Some leading world powers (France, Italy, Greece, Turkey) have refused to recognize the jurisdiction of the European court or to grant the right to individual petition to the commission or court.
Capacity
Some people have no, or a limited ability, to create binding contracts. -minors - U18 -unsound mind -directors acting ultra vires
Assumed full powers
Some persons can just be assumed to have full powers too: Ministers of trade, High ranking officials that work closely together and thus know the limits and boundaries of their respective responsibilities (e.g the say agricultural departments of Sweden and Finland).
Admissibility of reservations
Some treaties don't allow reservations, such as the Rome statute of the International Criminal Court; Some allow reservations to all provisions; Some allow reservations to some provisions. (Geneva convention of the continental shelf. → States may take reservations to to articles of the convention, other than to articles 1 to 3.) If the treaty doesn't say anything about reservation, a state may take reservations against whatever they like, if the reservation doesn't impair the raison d'être of the treaty.
Offeree
Someone who accepts the offer
Offeror
Someone who makes the offer
Consideration
Something of value or something bargained for in exchange for a promise
Definition of a Human Right (Cranston)
Something of which no one may be deprived without a grave affront to justice
Protocol
Something that amends an earlier international agreement
Jus Cogens
Source of int'l law that establishes peremptory norms that states have no excuses for violating, (i.e. slavery, torture, genocide, sovereignty)
When the title history of a parcel of land has been researched back to the original conveyance by the government, the history is said to go back to the __________.
Sovereignty of the soil
Factual statements can be inserted in
Special par.11
Bill is the buyer purchasing a property from Sally. All contingencies have been met and the parties are ready to close. One day prior to closing, Sally announces that she has changed her mind and is going to keep the property. Bill is determined to complete the purchase and acquire the property. The only default remedy in the contract that could result in Bill acquiring the property is___________________________.
Specific Performance
Christian Period of Jus ad Bellum: 300 - 1550
St. Augustine: -No just war, argues that all humans desire peace Only purpose of violence is the achievement of peace Aquinas: -War is sometimes necessary to restore peace and a just order -First person to put forth a systematic framework Just war requires (Christian just war theory): 1)The right authority - a duly constituted ruler (no private individual) declares war 2) A just cause - not clear what he means here 3) Right intentions - must achieve some good or avoid some evil (cannot be fought out of hatred, malice, or revenge) *If even one of the three are not met, the war is a sin and illegal
Federalism - Dormant Commerce Clause
State or local laws are invalid if they place an UNDUE BURDEN on interstate commerce - balancing test - e.g. Ban on out-of-state baitfish is permissible.
Legality of the Threat or Use of Nuclear Weapons
State practice but not opinion juris
UN article 2, section 7
State sovereignty-- no intervening in matters which are essentially within the domestic jurisdiction of any state
Main characteristic of int. law
States as main actors and their interrelations are based on the principle of the sovereign equality of all its members
The "Lotus" presumption
States have jurisdiction over all civil and criminal cases occurring within their own territories, and their jurisdiction may extend to certain cases occurring outside their territories as long as this jurisdiction does not exceed limits imposed by international law.
Federalism - Intergovernmental Tax Immunity
States may not charge state tax to be paid out of federal treasury for federal government activity I.e. no tax on federal stores, federal buildings, etc
Origins of ratification
Stems from older times when the king couldn't possibly travel around and conclude treaties on his own, so he sent a plenipotentiary instead. → Full powers to negotiate and conclude a treaty. → Bc of bad tech, the king couldn't know if the treaty fulfilled the conditions laid out by the ruler. As such, the plenipotentiary's signature wasn't enough for a treaty to be considered binding, and the king has to sign it instead.
Drennan & RST2§87 [sub new rule]
Sub bound to do work at the price quoted to general contractor, but the general contractor is not bound to award job to sub even if GC gets job.
Justiciable
Subject to trial in a court of law
opinio juris
Subjective element of customary law
Federal Courts - State Officers
Suits against State Officers are allowed if 1. sued for injunctive relief 2. money damages that the named D will pay
Right of Amish Not to Educate Children
Sup. Ct. decided that Amish were productive and law abiding citizens and ruled they have a right to educate one's children. Free Exercise Clause outweighed state interest
Charitable Subscriptions
Suppose a person promises to give a specified sum of money to a particular charity. Such a promise would not ordinarily be enforceable, since a charitable donor usually does not "bargain for" anything in return for his promise, and therefore there is no consideration. The doctrine of promissory estoppel is being used with increasing frequency to enforce such promises of charitable subscription.
Federalism - Preemption
Supremacy Clause says that the Const. & the laws and treaties made pursuant to it are the SUPREME LAW OF THE LAND. 1. Express preemption 2. Implied preemption 3. Intergovernmental tax immunity
Test for Materiality - 2 Prong Test
Surprise: under the circumstances it cannot be presumed that a reasonable merchant would have consented to the additional term. [only surprise was that they hadn't read the contract] Other things to consider here: repeat players, usage and trade, term has been traded a variety of times. More factors, stronger assessment. Hardship: look at whether the term would impose substantial economic harm on the non-assenting party. [Buyer never told seller] [parenthesis=Paul Gottlieb v. Alps]
When a joint tenant passes away the deceased property transfers to
Surviving joint tenant
Ahmed Zaoui
Suspected Algerian terrorist, detained in 2003 under the Terrorism Suppression Act. The case against him never made known, denied the right to a trial. Eventually security risk certificate withdrawn and now not considered a terrorist risk
Henri Dunant
Swiss, urges international community to develop organization to protect victims, founder of the International Committee of the Red Cross
Confucianism
System of philosophical and ethical teachings founded by Confucius. Instead of being dominated by laws, society could function effectively if people acted in good faith towards each other. Like Plato, this philosophy stresses the importance of having a statesman leading by example, as this would be more effective than any law
Trans-Pacific Partnership Agreement
TPPA
Implied Warranty for Workmanlike Construction [aka implied warranty of habitability]
TWO Components: (1) Quality of work and materials meet average or reasonable standards for the trade (2) Requires that the home be suitable for occupation and provide inhabitants with a reasonably safe place to live without fear of injury to person, health, safety or property.
Customary International Law
Tacet consent (He who is silent is taken to agree)
United Nations Charter Articles 2
Talks about States sovereignty and prohibits the use of force. It states that every state has the right to their own sovereignty. That they are all agree to abide the charter and that they will use the in good faith clause, and that no one state can use force to enter into anther state. Also 2.7 states that the UN cannot intervene with a state's domestic issue.
Goods
Tangible, movable personal property; doesn't include money, intangible property, or land
Reasons for international cooperation
Technological progress + human activity → bad for environment and health. Some issues are internal, but most of them, and importantly, the solution, are and is international. Cooperation is the only way to prevent spiralling global warming.
Silent as to a material term
Term may be implied from a gap filler. A gap filler is a term that a court supplies because it thinks that the parties would have agreed on this term if it had been brought to their attention or because it 'comports with community standards of fairness' Intent of parties is key factor
Additional Terms
Terms added to a contract
Primary approaches
Textual and teleological approach. Vienna convention, article 32 does leave provision for more approaches though: recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.
Treaty interpretation approaches
Textual approach, historical (subjective) approach, and teleological approach.
During the period after a real estate sales contract is accepted but before the delivery of the deed
That status of the contract is executory
Consideration
That there must be bargaining that leads to an exchange between the parties
Executive Power - Immunity
The President has absolute immunity to CIVIL suits for MONEY DAMAGES for any actions WHILE IN OFFICE.
Refugee convention article 31
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
Filartiga v. Pena-Irala is sometimes referred to as...
The First Alien Tort Statute Human Rights Case
International criminal court
The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer situations to the Court.
Nuremburg Trials
The Nuremberg tribunals were important because it was the first trail in history for crimes against humanity. Also it was a huge deal that they set up an international court to conduct the trial. IT used ex post facto (makes an act illegal even if it is legal when committed). It was also big because they went after German individuals and not just the state. They were charged with waging war aggression- crimes against humanity- War crimes- and conspiracy theory. Even though Crimes against humanity was not a law just yet, it was customary international law. One of the other reasons these trials were set up, is because they did not want another outcome like WWII. Instead of doing the winner gets to choose, they made it so the looser will get a fair trial so they are not unnecessarily blamed.
United Nations Charter Articles 55
The UN shall promote: a) higher standards of living, full employment, and conditions of economic and social progress and development b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion
Procedural Due Process - Non-citizen held as an enemy combatant
The ability to challenge continued detention.
"Core Content"
The absolute minimum need that must be ensured, without which rights would be meaningless
codification
The act or process of rendering laws in written form
bargained for exchange
The bargain theory of consideration does not actually require that parties bargain over terms. What is required [for consideration to exist] is that the promise and the consideration be in 'the relation of reciprocal conventional inducement, each for the other. Promise induced the detriment and the detriment induced the promise
Vendee
The buyer
Jane and bill divided 6- acre property into three 2- acre parcel lots (ABC). A and c can only access the public road through B.
The buyer of A and C will probably be granted an easement by necessity by court action
Receipt of goods
The buyer takes physical possession or control of the goods
Price
The consideration for a sale or contract to sell goods
Earnest money is deposited in an escrow account when:
The contract is signed by all parties and acceptance is communicated
When a seller takes the earnest money as liquidation damages uner a promulgated contract,
The contract is void and both parties are released
Equal protection tests
The degree of scrutiny applied to classifications depends on whether a classification is characterized as a (1) burdensome to constitutionally protected rights (2) inherently suspect (3) quasi-suspect (4) neither burdensome or suspect
Socialization/democratization
The extension of privileges and immunities
UN Charter
The founding constitutional document of the United Nations
Free exercise exception test
The general test to determine a free exercise exception to a state law is required: 1) does the person have a "sincerely held" religious belief 2) Is that belief burdened by the state regulation? IF so, then to avoid an exception, the state must show: 3) the requirement or regulation is necessary to an important state goal; and, 4) an exception would substantially hinder the fulfillment of the goal
1st Amend. - Speech: Symbolic Speech
The gov't may regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's goal
Substantive Due Process - Takings Clause
The gov't may take private property for PUBLIC USE only if it provides JUST COMPENSATION.
Establishment clause test
The government may extend benefits to religious institutions so long as 1) the government program must have a secular legislative purpose 2) the principle or primary effect of the benefit can neither advance or inhibit religion 3) there is no excessive government entanglement
Time, place, and manner test in limited public forum/ nonpublic forum
The government may regulate speech in such a forum to reserve the forum for its intended use if they are: 1) view point neutral 2) reasonably related to a legitimate government purpose
Jus cogens
The grundnorm for international law. Jus cogens works as constitutional law for international law.
Rawl's Argument in "Theory of Justice" against Socioeconomic Rights and the definition of Liberty
The inability to take advantage of one's rights as a result of poverty and ignorance is not to be counted among the constraints definitive of liberty. Instead, a lack of means is to be counted as affecting the worth of one's liberty, not the extent of liberty itself.
stare decisis
The legal principle of determining points in litigation according to precedent
Sunna
The life and teachings of Muhammed (Islamic law). Along with the Koran, this source regulates the behaviour of Muslims.
A loan assumption might be desirable because:
The loan assumption is generally less costly than a new loan
Material Misrepresentation [RST §162]
The misrepresentation is material if (1) It would induce a reasonable person to assent OR (2) the maker knows it will induce the recipient.
Codification of international law
The more precise formulation and systemization of rules of international law in fields were there already has been extensive state practice, precedent, and doctrine
Jus Cogens
The norms of international law that cannot be set aside. (Peremptory Norms) Cogent: clear and compelling. (Latin for "compelling") A norm from which no derogation is permitted.
Vienna Convention on the Law of Treaties Article 18
The obligation not to defeat the object and purpose of a treaty prior to its entry into force. In other words, states who have signed the treaty cannot go back on their word essentially and shows that signing a treaty holds weight. IMPORTANT TO REMEMBER: It is a legal rule. Hypothetical Example: If a state signed a convention against torture, and then tortured people, that state is technically not in violation of the convention against torture because they have not ratified it yet but they would be in violation of this article. Real Life Example: If the United States went around increasing their greenhouse gases, then, they would in violation of this article re: Kyoto Protocol.
Bilateral Contract
The offense generally must accept by making a promise
Legality
The offer and acceptance must be for a good or service that is considered legal. You cannot contract with someone to commit a crime or tort.
Definiteness
The offer must be so definite as to its material terms or require such definite terms in the acceptance that the performances to be rendered by each party are reasonably certain. [Sateriale v. Reynolds] NOTE* even though the parties have reached agreement, the agreement is void if the content of agreement is uncertain. (1) Look for the Material Terms: subject matter, price, payment terms, quantity, quality, duration and work to be done. (2) Then See If Terms of K Are Reasonably Certain: Terms of a contract are reasonably certain if: (1) they provide a basis for determining the existence of a breach and (2) for giving an appropriate remedy.
Acceptance
The offeree (not a third-party) must agree to the contract terms exactly as stated in the offer. This must be communicated in an appropriate time and manner. Acceptance is made when it has left the offeree.
Rejection
The offeree does not accept the terms of the offer.
Unilateral Contract
The offeree must accept by performing
Acceptance
The offeree must say or do something to accept
Firm Offer
The offeror states how long the offer will stay open before it is automatically revoked.
Revocation
The offeror withdrawals the offer with communication to the offeree before it's accepted.
Manufactured housing in Texas can be considered real property if
The owner chooses to treat it as such
Consent
The parties must enter the contract of their own free will. There can be no duress or undue influence.
Intention
The parties must have intended the agreement to be a binding contract. With social agreements the assumption is that there was no intention. With business agreements the assumption is that there was intention.
Offeror
The person who makes an contractual offer
Offeree
The person who receives a contractual offer
Quantum Meruit
The plaintiff gets "as much as he deserved."
Abandoning
The portectiong afforded to them as minors
Kelley Argument concerning implementation of the welfare state
The possibility entirely depends on the development of a particular society and whether there are enough resources to supply healthcare, insurance, etc. to all citizens
illusory promise rule
The presence of an illusory promise does not destroy the possibility of a contract. it may create a unilateral contract, and the promisor who made the illusory promise can accept it by performance. [Marshall Durbin] [detriment was refraining from seeking employment at a time the company was in a bad place] therefore it was a unilateral contract and fulfilled specific performance.
Collective Security
The prevention of aggression, the illegal resort to force, is the primary goal All states pledge to form a system, long in advance of any particular conflict, to act collectively to defeat any aggressor state in the system, irrespective of that state's character or geographic location Any belligerent state will receive a response from all states Variety of tools - diplomatic efforts, economic sanctions, military force Recourse to force is binding on all parties (theoretically) Benefit - you will be defended if you're attacked
intra-family promises and oral promises to convey land
The problems encountered in these situations may be surmountable if you can show foreseeable detrimental reliance.
An abstract of title is a summary of what
The titile search found in the public record
Express Contract
The two parties to the contract explicitly state all of the important terms of their agreement
1961 UN General Assembly Resolution 1653
The use of nuclear weapons is contrary to the "spirit, letter and aims" of the UN and, as a result, is in direct violation of the UN Charter"
Implied Contract
The words and conduct of the parties indicate that the parties intended to make an agreement
Freedom of contract
There are responsibilities to those who create binding relationships
Procedural Due Process
These are the procedures the government must follow to take away someone's LIFE, LIBERTY, or PROPERTY. 1. Has there been a taking? 2. If so, what procedures are required?
Equal Protection - Alienage Exceptions
These privileges may be reserved just for citizens: 1. Voting 2. Jury duty 3. Police officer 4. Probation officer 5. Teacher
Highly Qualified Publicists
They are the people who are specialized in their field. They have been published and must be considered as an expert in their field.
Rights are universal because... (Ignatieff)
They define the universal interests of the powerless
Application of IL for semi-civilised states
They were authorised to conclude agreements w civilised nations. Independence and sovereignty was recognised. Civilised countries were thus not allowed to colonise semi-civilised countries. But the capitulation system was still in use. Jurisdictional immunity. Tax exemptions etc. Basically colonisation anyway. Basically restricted independence. Another example is China. Six unequal treaties. They had to give up Hong Kong and Macao, as well as granting foreign states the privilege of having soldier stationed in the country. No independent trade policy.
The most common type of financing used in residential transactions is
Third Party Financing
Standing - Third Party Exceptions
Third party standing allowed if: 1. Close relationship (doctor/patient; NOT non-custodial parent). 2. Injured party is unlikely to assert their own rights (e.g. jury discrimination) 3. Organization
Pacta sunt servanda
Translation: In good faith. It is tied back to Article 26 of the Vienna Convention on the Law of Treaties.
Sources of international lawmaking
Treaties Executive agreements Legislation Federal regulations Federal court decisions Testimony and statements before congressional and international bodies Diplomatic notes Correspondence Speeches Press conference statements Internal memoranda
Statute of the ICJ Article 38
This article gives us the sources of international law. The primary sources would be Treaties, Customary International law and General Principles of Law. TREATIES are Written and ratified agreements between states or international organization. It is a contract which have to be written. CUSTOMARY INTERNATIONAL LAW are not generally written down. A person must show that the actions are widespread and consistent and have been down out of legal obligation. GENERAL PRINCIPLES OF LAW are laws that are mostly applied universally in states. IF most states have this then it can be used in an international level. For example habeas corpus and the right to be brought for a fair trial The secondary sources of law would be Judicial Decisions and Writings of a highly qualified publicists. These cannot be used by themselves. JUDICIAL DECISIONS are court cases where judges have rendered a decisions in a court and can be used as an example in court. WHOP are the writings of people who specialize in certain area and are known in their field. It can be used in court, but not just by itself. The Third source would be In justice and in fairness which stares that only if the court have asked both parties. Can also include jus cogens- which are the ultimate law of the land which no one can fight against. For example genocide is a jus cogens law.
Common Article 3
This article is found in all four Geneva Conventions and applies to non-international armed conflicts such as wars of national liberation and civil wars. The summarized version of this article would be that a) persons taking no part of active hostilities (including those who have laid down their arms or placed on hors de combat) will be treated humanely and b) the wounded and sick shall be taken care of.
Article 38 (1) of the Statute of the International Court of Justice (1946)
This article is the most authoritative enumeration of the sources of international law.
United Nations Charter Articles 1
This article lists the purpose of the United Nations. 1) Maintain international peace and security. 2) Develop friendly relations among states. 3) Achieve international co-operation in solving international problems and encourage respect for human rights. 4) Be a center for harmonizing the actions of nations in attaining common ends
International Covenant of Political and Civil Right ICCPR
This covenant is mostly filled with negative rights. Assembly political participation torture enslavement due process nationality equal protection movement into and out of state Marriage
Shrubs from a property owner have grown over the last 20 years and now extended over onto a neighbors peoperty.
This extension is called an encroachment
A buyer and a seller enter into a real estate sales contract. Under the contract's terms, the buyer will pay the seller $450 per month for 8 years. The seller will continue to hold legal title to the property. The buyer will live in the poetry and pay all real estate taxes, insurance premiums and regular upkeep costs.
This is an example of a contract of deed contract.
A tenant received a job offer in another state and requested that the landlord allow her friend to take over her lease. The landlord agrees to allow the first tenant to sublet the apartment.
This is an example of assignment
A seller promises to sell his house and transfer title to the buyer, who promises to pay $125,000 for the house.
This is an example of bilateral contract
During a contract, a buyer lost his job. The seller decided they didn't want to sell after all, so the parties decided to terminate the contract.
This is an example of mutual agreement
If a homeowner fails to pay the real estate taxed on time the taxing authorities can impose a claim on the property.
This is called a lien
An application should be filed by a Landowner to use state water to water his corps.
This is called doctrine of prior appropriation
Shrubs/tree limbs from an adjoining property are now growing in your property;
This is encroachment
1st Amend. - Speech: Non-public Forums
This would include courthouse (not the courthouse sidewalk though - this is public forum) - Must be reasonably related to purpose and viewpoint neutral.
Domestic law, the nature of international law, principles of higher law
Three types of general principles
Sources of International law
Treaties, international customary law, general principles of law including acting in good faith and free consent.
Deceptive trade practices act violation may result in
Treble damages awarded to an injured party
With an offer to purchase, the earnest money must be delivered to a
Title company or deposited in an escrow account within 2 business days
Quasi-Contract
To compensate a plaintiff
Comity
To do something out of courtesy. It was the right thing to do... Is something customary or is it a comity? Was it done out of custom of done out of courtesy.
Promissory Estoppel
To enforce the defendant's promise
RESPA is
To ensure that buyers have knowledge of all costs in purchasing a home
The purpose of the real estate settlement procedures act (RESPA) is
To ensure that buyers know all settlement costs that will be charged to them
Unpaid Consideration:
To have a valid option contract there MUST BE CONSIDERATION. Without consideration the offer to sell may be revoked at any time before acceptance. but might be able to use promissory estoppel substitute consideration and limit revocability of the offer. (Berryman v. Kmoch)
Role of Rights to Enlightenment Political Theory
To legitimate and control government
Four Corners Doctrine - Classical View
Total Integration: Document is intended by parties to include all details of their agreement. Writing is complete based on self-sufficiency of the K - "the four corners."
void contract
Totally without any legal effect from the beginning and cannot be enforced by either party. (K to commit a crime or illegal activity)
Fee sample ownership, shared walls, and common areas are similar to
Town-house ownership
Fee simple, shared walls and a fractional interest in common areas are all characteristics of
Town-house ownership
Course of Dealing (Nanakuli)
Trade usage and past course of dealings between contracting parties may establish terms not specifically enumerated in the contract (price protection) so long as no conflict is created with the written terms. UCC §1-205 -course of dealing (how same parties have acted in the past) course of dealing = sequence of previous conduct between parties that can fairly be seen as establishing a common basis of understanding for interpreting their expressions and conduct
First-Generation Rights (Waldron) + argument for socioeconomic rights
Traditional liberties and privileges of citizenship, covered by the first twenty articles of the UDHR Traditional freedoms could not adequately be enjoyed by people who lacked the basic necessities of life "If we truly respect human agency as an end in itself, we must follow that end where it leads and, in the circumstances of human life, that may well require us to attend to the needs of persons whose ability to function as agents is imperiled by poverty or disease or by the fear of those predicaments" In order for rights to be exercised, other rights are required If one believes that first-generation rights are predicated on some notion of respect for human dignity, is neglect of their social and economic predicament consonant with that respect?
Easnerst money being deposited with in escrow account with titile company is the 1st step in the
Transaction process
a counteroffer is:
a rejection, a new offer, able to be withdrawn prior to acceptance
Islamic Law/Sharia Law
Type of law that is derived from Islam, and operates in most predominantly Muslim nations.
Civil Law
Type of legal system that sets out laws in large codes rather than relying on a precedent-based system. Judges play a reduced role in creating law as less room for judicial interpretation. Binding precedents do not play a central role, judges still must interpret legal codes, however this is relatively straightforward. Judges take an active role in investigating cases, lawyers take on a less important role
UCC §2201 SOF
UCC applies where K is predominately for the sale of goods and over $500, even if the goods are worth LESS & services push K over $500.
Good faith
UCC standards. Duty implied in all kual dealings.
Manufacturer/Dealer Rule
UCC §2-101:5- when a manufacturer sells its product to the public through a local dealer, the transaction is a sale, and the application of the Code is not avoided by describing the relationship as a 'sales distribution plan' Most distributorship agreements are likely to fall within the scope of Article 2. If so, obligations found in UCC §2305 & §2309 should eliminate most problems of lack of consideration or lack of mutuality.
Offers that dont make clear whether acceptance is through promise or performance
UCC&RST same: an order or other offer to buy goods for prompt or current shipment shall be construed as inviting acceptance either by a prompt promise to ship or by the prompt or current shipment of conforming or non-conforming goods, but such a shipment of non-conforming goods does not constitute an acceptance if the seller seasonably notifies the buyer that the shipment is offered only as an accommodation to the buyer.
FHA loans include two mortgage insurance premiums that must be paid by the borrower. They are the:
UFMIP and Annual Premium
Exception to 2(4): Self-Defense
UN Article 51 (self-defense clause) Res. 660 - US came to aid of Kuwait (involved collective self-defense) This right may be exercised either individually or collectively
Exception to 2(4): Force undertaken by the five major powers before the Security Council was functional
UNC Article 106 - never invoked, now defunct because process has been established Allows the five permanent members of the Security Council to take joint military action if the formal procedure for the Security Council to act has not yet been established Allows PMs to take joint military action
Exception to 2(4): Force undertaken against the "enemy" states of the Second World War
UNC Article 107 and Article 53 - also never invoked, defunct Allowed state to continue use of force until end of WWII War ended September 1945
1996 Legality of the Threat or Use of Nuclear Weapons
UNGA asks ICJ Conclusion: uniform state practice in non-use, conflicting opinio juris **Inconclusive
ICC jurisdiction
US hasn't signed any ICC convention, meaning that international crimes are committed on US soil, the ICC can't do anything. The ICC is mostly concerned with geography though, so US nationals committing crimes outside of the US can still be prosecuted. Security council can forward cases to the ICC, but the US has veto power so that helps **** all.
A "Section 502 Loan" is insured by the ________.
USDA
Theoretical response
Ubi societas ibi jus → Where there is society there is law. The prerequisite for law isn't a sovereign, it's society. Islamic societies were not ruled by a sovereign, but by the Qur'an and the Hadiths. Basically a lot of countries are not governed by law issued by a sovereign, so Austin's definition doesn't necessarily cut it.
Article 46
Ultra vires; someone without authority; violating law in a way that is manifest
Federalism - Discriminates Out of Staters & Burdens Interstate Commerce
Unconstitutional UNLESS it is 1. necessary to achieve an important government purpose; and 2. government must show that no less discriminatory method can achieve its goal e.g. In-state college tuition
A contract in which only one party is obligated to perform is a________ contract.
Unilateral
If there is a ______ mistake over a simple error, then contract usually can be avoided
Unilateral
Convention relating to the status of refugees (1951 refugee convention)
United Nations multilateral treaty that defines who is a refugee, and sets out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The Convention also sets out which people do not qualify as refugees, such as war criminals. The Convention also provides for some visa-free travel for holders of travel documents issued under the convention.
International human rights law - universal level
Universal declaration of human rights -48. International covenant on civil and political rights, and international covenant on economic, social and cultural rights -66. Putting substance and content into the notion of human dignity (found in the UN charter).
Human Rights Universalist's Response to Cultural Relativism
Universalism refers to the notion that human rights are universal and should apply to every human being. Cultural Relativists object, and argue that human rights are culturally dependent, and that no moral principles can be made to apply to all cultures.
Corbin/Modern rule of requirement/output contracts
Upholds these contracts on the theory that consideration could be found in the surrender of the buyer's privilege to buy elsewhere
If all elements of a contract are present, the contract is generally termed...
Valid
Most notable positive appearance of Jus Cogens is in the...
Vienna Convention on the Law of Treaties --referred to as "peremptory norm -No derogation is permitted
A contract does not state in the consideration is considered
Void
If there is no capacity, the contract is..
Void
If there is partial capacity, the contact is...
Voidable
Mortgage liens are
Voluntary liens
Treaty
WRITTEN and ratified agreements between states. Highest form of law because they have been discussed, for years sometimes, written, and ratified. The domestic equivalent would be a contract.
Implied warranty
Warranty obligation implicitly imposed by law on all sellers
elements of consideration
Was there a benefit & a detriment? Was this a bargained for exchange?
treaties, customary law, and general principles
What are the three principle sources of law?
Judicial decisions and scholarly writing
What are the two subsidiary sources of law?
Berlin Argument for Socioeconomic Rights
What is freedom to those who cannot make use of it? What are rights without the power to implement them? "Liberty is one thing, and the conditions for it are another"
Categorical Imperative
What ought to be done, what is obligatory, what is right, what is duty, what is just. Not what it would be nice to see done one day, but what is demanded by the basic norms of morality or justice
Equal Protection - Alienage & Congress
When Congress discriminates against aliens, only RATIONAL BASIS applies.
Emancipation
When a minor can be treated like an adult and their parents do not have to make legal decisions, the minor can make decisions on their own
Executed Contract
When all parties to the contract have fulfilled their obligations under the contract
A breach of contract is NOT
When an agent who has a listing cannot produce a ready, willing and able buyer
Fraudulent or Material Misrepresentation Makes K Unenforceable
When assent is induced by a fraudulent or material misrepresentation upon which recipient is justified in relying, the K is voidable. EXCEPTION: Unless the other party to transaction in good faith and w/o reason to know of misrep either give a value or relies materially on transaction. But if no reliance, we're going to rescind negligent/innocent misrepresentation here.
UCC §2-610.
When either party repudiates the contractwith respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may (a) for a commercially reasonable time await performance by the repudiating party; or (b) resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter's performance and has urged retraction; and (c) in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller's right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704).
Executory Contract
When one or more parties has not fulfilled its obligations under the contract
Breach of Contract
When one party of the agreed-upon contract fails to complete their duties the other party can seek legal recovery of losses.
Barter
When parties exchange goods for goods
Payment
When the buyer transfers the agreed-upon consideration and the seller accepts it
Voidable Contract
When the law permits one party to terminate the agreement
Unenforceable Agreement
When the parties intend to forma valid bargain but some rule of law prevents enforcement
An owner builds a deck and permanently attaches it to a house.
When the property is sold, it will be transferred with the property with a conveyance deed
Exceptions from pacta sunt servanda
When the treaty has a provision for withdrawal, and the exceptions described in the Vienna convention.
"as is clause"
a rescission cannot be ordered to relieve a party who has assumed the risk in connection with the mistake
cohesive society
a society where citizens live together peacefully
Multilateral treaty negotiation
When there is debate on a specific provision, it is often included through voting, often a two-thirds majority. A state that voted against might do three different things: They could just accept the treaty, bc even though a few articles might not be as beneficial as they might've wanted, they'll accept the fact that it's more beneficial to be party to the treaty. → Then follows signing and ratifying etc; They might refrain from ratifying the treaty bc the provisions are unbearable; They could ratify the treaty, but reserve themselves against the unbeneficial provisions.
Equal Protection
Whenever the Gov't draws a distinction among people
Mortgage liens are voluntary liens
Where mechanics liens are not
Course of Performance
Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any court of performance accepted or acquiesced in without objection shall be relevant to determining the meaning of the agreement"
RST2 and bilateral k
Where there is a plausible argument that the offeror is attempting to elicit either bilateral contract or unilateral contract, we will assume that there is a bilateral contract.
Standing
Whether P is a proper party to bring the matter to court: 1. Injury in fact 2. Causation & Redress-ability 3. No third party standing 4. No generalized grievances
Ripeness
Whether a federal court may grant pre-enforcement review of a statute or regulation - level of hardship - thickness of the issues in the record
Predominant Purpose Test
Whether a particular transaction is governed by the UCC rather than CL hinges on the predominant purpose of the transaction whether the k primarily concerns the furnishing of goods or rendering of services.
A mortgage or deed of trust usually includes an acceleration clause
Which if the property is foreclosed on, the lender has the right to declare the entire debt due and payable immediately
Polluter Pays
Whoever pollutes will have to pay - one problem how do we link the problem to the company?
A conveyance deed
Will transfer permanent fixed objects attached to a home
1st Amend. - Speech: Fighting Words
Words intended to provoke physical violence are NOT protected, but statutes attempting to punish fighting words are often found to be vague.
UN Charter
Written April 1945 - June 1945 in San Francisco Conference Delegates thought that WWII was a violent demonstration of states using force to alter political/territorial status quo Force is too destructive to be considered an acceptable means to advance policy Force should only be used for value conservation, to preserve the existing status quo (political and territorial), or for self-defense authorized by SC
applications of express warranties
Written or oral express warranty given by the seller concerning the quality or nature of the goods. EX: this car will go 25 mph
September 2011: Anwar al-Aulaki
Yemeni-American killed in Pakistan, chief propagandist of AQ His death continues to radicalize others
remedies
You can affirm a contract and sue a tort for damages. You will get the worth of the contract.
termination by Destruction of Subject Matter [termination by operation of law]
You sell a music hall and it burns down
intoxication
[RST §16]- a contract is voidable if a party has reason to know that because of intoxication the other person is unable to either understand the transaction or act in a reasonable manner (Lucy v. Zehmer)
Mistake
[Traditional] (EX: barren cow, soda can, painting hypo) if the mistake goes to the essence of the contract rescission is allowed. [New Standard] when the parties have made a mistake that goes to the essence of a K, a case-by-case analysis must be done. Rescission = equitable remedy which is only granted in discretion by the court (Messerly). Who is the best cost avoider? Risk Allocation Is allotted to them via agreement He is aware at the time of limited knowledge but treats it as sufficient Court allocates because of discretion
Mutual Assent
[did they intend for their agreement to have legal, binding effect]: for a contract to be formed, the parties must both intend to contract, and they must agree on at least the main terms of the deal.
Implied in fact
[true k]: *When a person requests another to perform services for him or to transfer property to him, the law will infer a bargain to pay. [bargained for exchange]
Qualified Acceptance
a 'varying acceptance' = counter-offer Comment a RST2 §59: BUT a definite and seasonable expression of acceptance is operative despite the statement of additional or different terms if the acceptance is not made to depend on assent to additional or different terms. See §61. The additional or different terms are then to be construed as proposals for modification of the contract. See UCC §2207(2)
public policy
a K will not be enforced if it differs from basic principles forming the foundation of public laws, even though the acts contemplated might not be expressly prohibited by a law. Non-compete: restrictive covenants not to compete will be strictly construed for reasonableness. Will be invalid unless it protects some legit interest beyond employers desire to protect itself from competition. Severance clauses: when the severability of the agreement is not evidence from the K itself, the court cannot create a new agreement for the parties to uphold the K Blue pencil reduction: court can use mechanical approach can blue pencil or line out an objectionable term and the remainder will be enforced. (RST §184: endorse a more flexible method allowing reduction of the effect or scope of a clause to make it reasonable Comment b: court's discretion to reduce a covenant should be exercised only when no evidence of overreaching or bad faith by promisee)
Millennium Development Goals
a UN initiative in which eight international development goals were established following the Millennium Summit of the United Nations in 2000
Browse-wrap
a browsewrap term is set out on a website and is available to be read by the user of the website before submitting her order for the service or product purchased. However, a browsewrap term is different from a clickwrap term in that the user does not have to indicate assent to it by affirmative conduct, such as clicking on an "I accept" button. Because the user does not have to take deliberate action to manifest assent to the term, the conclusion that the user did assent to the term is not as compelling as it is with a clickwrap term, and issues of conspicuousness and notice may arise,
An abstract of title is:
a complete written history of title
RST2§26:
a manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making the manifestation does not intend to conclude a bargain until the maker has made a further manifestation of intent.
RST2 §133
a memorandum does NOT need to be made as a memorandum of a contract Minutes of a meeting or diary entry sufficient.
RST2 §132:
a memorandum may consist of several writings if one is signed and the others clearly relate to the same transaction. Comment c: even if no internal reference or physical connection, the documents may be read together if clearly related to same transaction and party to be charged acquiesced.
Repudiation
a party can repudiate a contract where the other party has committed a material- and therefore total- breach of the contract by continually failing to make required payments.
objective theory of contracts and mutual assent
a party's intentions are measured by what a reasonable person in the position of the other party would have thought the first party intended based on their conduct and statements.
global citizen
a person who identifies as being part of the world community and acts according to and seeks to build world community values and practices
Restatement of Restitution § 2
a person who officiously confers a benefit upon another is not entitled to restitution.
asylum seeker
a person who seeks protection as a refugee and is still waiting to have his/ her application for refugee status assessed
ratification
a process that legally binds Australia to implement a treaty
When Is Acceptance Effective [mailbox]: Rejection sent before acceptance:
a rejection does not terminate the offeree's power of acceptance until receive, but any acceptance dispatched by offeree after rejection is sent is not effective unless the acceptance is received by the offeror before he receive the rejection. RST2§40
A state party can
accept the reservation; remain silent (If they're silent for more than twelve months, it's treated as accepting it, meaning that the reservation is applicable bilaterally in a reciprocal way, i.e that the accepting state might act in accordance with the reservation, provided that the reserving state honours its reservation.); object (In that case, the modification included in the reservation is not bilaterally applicable between the actors party to the reservation and the objecting state. Customary international law does still reign paramount, however, meaning that the diplomatic bag will not be opened.), or oppose the entry into force of the whole treaty (Meaning that the whole treaty isn't applicable, which is often used if the reservation is made against one of the most important provisions.)
________ of an offer means that the accepting party does so with no change to the contract whatsoever.
acceptance
When Is Acceptance Effective [mailbox]: Acceptance of an Option K:
acceptance effective not upon dispatch, but upon receipt by the offeror RST2§64(b)
reprisal
act that is normally a violation of international law, but that is permitted as a response to another nation's violation of international law
A(n) ________ to a contract is an attachment that adds or further describes the rights and duties of the parties.
addendum
A(n) __________ to a contract is an attachment that adds or further describes the rights and duties of the parties.
addendum
__________ occurs when an individual acquires title from the rightful owner through hostile, actual, and continuous occupation of the land for the statutory period.
adverse possession
The type of law that deals with the relationship between the parties to a transaction, sales agents and brokers is:
agency law
unenforcable contract
agreement that is o/n valid but which may not be enforceable due to defences. extraneous to k formation, statue of limitations, (S.O.L) ( Statute of Frauds)
Pacta Sunt Servanda
agreements must be kept (treaties are based on good faith)
pacta sunt servanda
agreements must be kept or.. "contracts between states must be legally binding" -norm fundamental to the legal system
Memoranda of understanding
agreements that aren't intended to give rise to legal rights and obligations.
Which kind of rights extend above the surface of property without limitation?
air rights
__________ extend above the surface without limitation.
air rights
Preparatory work for a treaty
all documents leading up to the final draft and the signing of the treaty → previous drafts, recordings of negotiations.
Vienna convention (1961)
an international treaty that defines a framework for diplomatic relations between independent countries. It specifies the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity. Its articles are considered a cornerstone of modern international relations.
Kyoto Protocol
an international treaty to reduce greenhouse gas emissions
termination by Offeror Revocation
an offer is generally freely revocable and can be countermanded by the offeror at any time before it is accepted by the offeree. Generally, notice of the offeror's revocation must be communicated to the offeree to effectively terminate the offeree's power to accept the offer. [can be indirect]. A revocation by the offeror does not become effective until it is received by the offeree. RST2 §42. Minority: several states have statutes making revocations effective upon dispatch.
General Assembly
an organ of the United Nations that decides the budget, makes declaration,
Conventions and treaties are semantic variations of the same thing
and protocols are supplements to treaties
UCC § 2207 (1)
any 'expression of acceptance' or 'written confirmation' acts as an acceptance even though it states terms that are 'additional or different from' those contained in the offer. That expression of acceptance DOES NOT FORM K IF magic words...aka 'expressly made condition on assent to additional or different terms.' --Unless offeree uses an 'expressly conditional acceptance'
Classical Doctrine and Adequacy of Consideration
any detriment, no matter how economically inadequate, will support a promise provided that the detriment is in fact bargained for. [Williston]
Implied Term
any term the court finds to be implicit in the parties' words or conduct even though not literally expressed by them [implied in fact] Made part of an agreement by operation of law not bc of the agreement between the parties themselves
protest of a bad faith manifestation (CL & UCC)
applies to BOTH parties, binds not only party seeking modification, but party trying to resist it. Think the nets in the Alaska case
Under the Deceptive Trade Practices Act, __________ are defined as tangible chattels.
goods
Application of Parol Evidence Rule and good faith
because the obligation of good faith is an implied term rather than an express one, the parol evidence rule will ordinarily be irrelevant to the issue of its existence and application -->MIGHT appear where offered evidence directly contradicts an EXPRESS term.
A(n) ________ mortgage covers more than one piece of property.
blanket
Knockout Rule:
both terms drop out and the duration of warranty would be determined by application of Article 2. underlying rationale is that it favors neither the offer nor the acceptance where the terms disagree
anticipatory repudiation
breach in advance of performance— makes it clear by words or actions that she will breach when performance falls due before the time for performance, she (occur between the time that the contract is made and the time due for its performance)
A(n) __________ is an area of land separating one land use from another.
buffer zone
Non-State Actors
can be tried at the International Court of Criminals
Checks and SOF
can count (if deal written on the memo line), but only against the party who has signed (including endorsement)
ICJ
can hear cases that violate any of sources of law; prosecute states only; an organ of the UN
Limitation- Criminal Prohibitions
cant disregard crinminal laws due to religious beliefs, so unemployment comp laws may disqualify someone for misconduct inclduing violation of criminal law (using Peyote)
judicial hierarchy
chain of command in legal systems in which decisions of higher courts possessing greater authority are binding on lower courts
Most important modern role for judges and scholars is ...
collecting the data necessary to establish or explicate rules drawn from the other three sources of international law -also evaluate collected data -also frame rules that ought to be adopted -fine line between these roles and the role of formation of laws
statute of limitations
collectors cannot attempt to collect debt after 4 years with written contract. 2 years with oral contract. That law pertaining to the period of time within which certain actions must be brought to court.
________ law is a body of law based on "common sense" and local custom.
common
________ law is a body of law based on "common sense" and local custom.
common law
The five essential elements of a valid and enforceable contract are, Consideration, Offer and Acceptance, Legal purpose, In writing and __________.
competent parties
Peace of Westphalia (1648)
concept of sovereignty
humanitarian
concerned with or seeking to promote the welfare of humans
Additional Exception to Condition
conditions that are merely technical general excused under theories of adverse interpretation waiver prevention and avoidance of forfeiture
Conscious Ignorance [RST §154(b)]
conscious ignorance of all relevant facts before entering into agreement = assumption of risk EX: sold million $ painting for $80 bc didn't get it appraised—too bad—the sellers were aware of the possibility the estate might include fine art but failed to employ an expert
The five essential elements of a valid and enforceable contract are, competent parties, offer and acceptance, legal purpose, in writing and ________.
consideration
Hugo Grotius
considered founder of International Law. Argued that nations still formed a community and were bound to obtain a higher moral code
A(n) __________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
contingency
. A(n) ________ is an agreement between two or more parties to do something or to refrain from doing something.
contract
A(n) __________ is an agreement between two or more parties to do something or to refrain from doing something.
contract
A(n) __________ is a type of seller financing wherein the owner retains title to the property while the purchaser takes possession of the premises and pays on the principal.
contract for deed
Unconscionability
contracts in which parties are in an unequal bargaining position, and there is an absence of meaningful choice for one party and unreasonably favorable terms for the other. Most courts require showing of procedural and substantive. Procedural: Whether there is a meaningful choice: determined by consideration of all the surrounding circumstances of the transaction- defect in bargaining process Substantive: Reasonableness or fairness: primary concern is with terms of K considered in circumstances when K was made (overly harsh or one sided results) Corbin thinks test is whether "the terms are so extreme as to appear unconscionable according to the mores and business practices of the time and place"
Courts May not Find Religious Beeliefs to Be False
courts may not find religous beliefs to be false but court can determine whether the person is sinceryly asserting a belief in the divine statement
Policy in interpretation
courts struggle to reconcile (1) parties' intended meanings, (2) fair outcomes, and (3) creating incentives for parties to clarify intentions (balancing discouraging litigation with minimizing transaction costs)
optional clause
critical component of the treaty that created ICJ, this clause gives states the option to agreeing or not agreeing in advance to be bound by the decisions of the court
classical rule of requirement/output contracts
deemed illusory because the buyer could refrain from having requirements. Claimed invalid because of lack mutuality because the seller was bound but the buyer was not. And invalid because the quantity the buyer was bound by was indefinite and vague.
economic duress
deemed voidable not void Williston Elements: The party alleging economic duress must show that he has been the victim of a wrongful or unlawful act or threat, and Such act or threat must be one which deprives the victim of his unfettered will
Rome Statute to the ICC (Article 7)
defines crimes against humanity; murder, extermination, forced disappearances, enslavement, torture, etc.
Rome Statute to the ICC (Article 6)
defines genocide; acts committed with the INTENT to destroy in whole or in part a national, ethnical, racial or religious group.
Rome Statute to the ICC (Article 8)
defines war crimes; Wilful killing, Torture or inhuman treatment, including biological experiments, etc.
How to make an advertisement an offer
definite, specified number/quantity, "first come first serve". Look at variables in pyramid.
Good Faith and Open Price Terms UCC §1-201(b)(20):
definition of good faith recognizes the obligations of both subjective honesty in fact and objective commercially reasonable behavior breach of duty of good faith shown through improper motive even though the prices set might appear to be objectively reasonable
extrajudicial killing
deliberated killing not authorized by a previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples
Legal effect of reservations
depends on the other parties' reaction to the reservation. Depositary has the obligation to notify all actors party to the treaty and invite them to take position.
The requirements for a valid lease are, competent parties, let and take agreement, in writing and ________.
description of the property
General Principles of International Law
designed to be gap fillers when there are no treaties or CIL; looks at law in different states. Example: Habeas Corpus - right the be brought before a court
__________ is not a requirement of a valid contract.
earnest money
An example(s) of an appurtenance would be:
easements
liberalism and international law
embodying shared values
A claim, lien, charge, or liability attached to and binding real property is a(n) ________.
encumbrance
§ 2-209(2) and (3) in conjunction with (4)
even though "an attempt at modification or rescission doesn't satisfy the requirements of (2) or (3), it can operate as a waiver"
Good Faith UCC §1-304
every contract or duty within its scope imposes an obligation of good faith in its performance and enforcement
Customary International Law
evidence of a general practice accepted as law
Bilateral contract
exchange of mutual promises. Each party is promisor and promisee
An offer by a prospective purchaser can be terminated prior to acceptance due to:
expiration of a specified time period, bankruptcy of either party, a change in the law that renders the contract illegal
interpretation
explanation of something not obvious or not meaning the same thing to everyone
UCC §2306 (requirement/output contracts)
explicitly validates requirements and outputs party who determines quantity must conduct his business is in good faith and according to commercial standards of fair dealing in the trade. (1) Buyer must deal exclusively with seller. [buyer promises to buy all of his requirements from that seller] (2) On requirements k: buyer must make 'best effort' to promote sale of goods (3) Output k: seller cannot simply decide to stop selling the item and must make best efforts to supply the good Consideration: This promise + good faith = consideration
identitive compliance
fact that people and nations usually abide with laws not out of fear of punishment but because the laws embody norms that are viewed as right
Factors for Letter of Intent Enforceability / General Enforceability in Indefiniteness
factors to consider: Agreement of a type usually put into writing Level of detail Amount of money Formal agreement necessary for full expression of covenant Formal document is contemplated When and why negotiations were abandoned Extent of assurances given Other party's reliance factors favoring enforceability: Timing was tight P was told he had the K Language of the Letter of Intent
common law SOF
failure to comply with statute of frauds, even if supported by consideration, will make a contract unenforceable.
A seller is going to continue to occupy a property for two days after closing. In this case, the parties should use the Buyer's Temporary Residential Lease form.
false
In Texas, real estate contracts are subject to satisfactory inspections.
false
enduring value of international law
false lessons of spectacular failures (Kellogg-Briand Pact). You need realistic visions of what international law can and cannot accomplilsh (Positive vs. Natural law traditions) -States usually abide by international law (identitive, utilitarian, and coercive compliance)
Substantive due process
federal government is prohibited by the 5th amendment and the States by the 14th amendment to deprive a person of life, liberty, or property
________ is the legal procedure whereby secured property may be sold to satisfy a borrower's unpaid promissory note.
foreclosure
__________ is the process by which a lender exercises its power of sale under a mortgage that is in default.
foreclosure
Contract Implied in Fact
form of enforceable contract, based on tacit promise, one that is inferred in whole or in part from the parties' conduct, not solely from their words
Wrongful or criminal deception intended to result in financial or personal gain is called:
fraud
When an individual owns real property, he or she is said to have a (n) __________ in that property.
freehold estate
Application of IL for civilised states
full application
At closing, the contract is:
fully executed
MAJORITY Definition of good-faith in UCC: §1-201(b) (20)
honesty in fact and the observance of reasonable commercial standards of fair dealing
unilateral contract
modern view
UCC and good faith where the contract for sale calls for exclusive dealing
imposes best/reasonable efforts Courts Split: Minority: refuse to enforce such clauses on the ground of vagueness Others: treat clauses as the equivalent of 'good faith' Majority: define 'best efforts' in terms of reasonableness or diligence
Impracticability
impracticability argument for getting excused for express conditions is actually a more rigorous variable than how we see it traditionally--> excuse condition -->one of relatively strong excuses in this context
Any man-made addition to land that is permanent, and is considered to become part of the land is known as a(n) __________.
improvement
RST2§26(b) on advertisements
in newspapers, magazines, etc. are not offers but merely invitations for an offer. To make an offer by advertisement there must ordinarily be some language of commitment or some invitation to take action without further communication.
The closing date specified in a contract is usually a(n )"__________" date.
on or before
Which of the following is a physical characteristic of land?
indestructability
Article 43
instructs member nations to make military services available for UN use if necessary
International Criminal Court (ICC)
intergovernmental org. and internat. tribune that has jurisdiction to prosecute individuals for internat. crimes of genocide, crimes against humanity, and war crimes
International Tribunal for the Law of the Sea
intergovernmental org. created by UN 1982/1996
Classifications that are quasi-suspect are analyzed under varying degrees of....
intermediate scrutiny. Generally, this analysis requires a classification to be substantially related to an important governmental interest
Universality of international law
international law at least establishes universal, absolute values. International law is concerned with the relation between you and the government in the country in which you happen to reside, all in order to protect the human dignity of the individual, and Bc human dignity is a universal value, everyone, without exception is covered.
RST §200
interpretation is ascertainment of meaning
__________ occurs when an individual dies, leaving no valid will.
intestate succession
Alien Tort Statute
is a section of the United States Code that reads: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Since 1980, courts have interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. (Gives teeth to international law)
Torture Victim Protection Act of 1991
is a statute that allows for the filing of civil suits in the United States against individuals who, acting in an official capacity for any foreign nation, committed torture and/or extrajudicial killing.
The Paquete Habana case is significant because
it determines that courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today
Purchase Orders (UCC)
it is most often buyers purchase order, submitted in response to the quotation that constitutes an offer
1948 Declaration of Human Rights
it is non binding because it is not a treaty There are three generations. 1. Political and civil rights 2. Economic, social and cultural rights 3. Cultural and Group Rights Also has positive (Do or provide) and Negative (do not/ take away) rights which Example: positive right- provide education negative right would be - Do not torture
Common but Differentiated Responsibilities
it states that even though each state would need to take actions, some of them will have them pay more to help with the rebuild than others because it would be proportional.
ICC
jurisdiction of the ICC territory of a state party, referral by the security council, national of a state, prosecutor for a state that is a party.
RESPA prohibits ________, which is considered an abusive practice.
kickbacks
Which disclosure is provided to comply with federal requirements for properties built before 1978?
lead based paint disclosure
A(n) __________ is one that combines some of the elements of a sale with a lease.
lease purchase agreement
A(n) __________ description of property is a requirement for a valid deed.
legal
International Court of Justice (ICJ)
legal judicial branch of UN. Any state believing that its rights under international law have been violated is free to bring suit to ICJ against offending parties
Necessary and proper test
legislation needs to be convenient or useful to the exercise of an enumerated power
Is a Letter of Intent Binding?
letter of intent is binding if parties intended it to be binding (quake and corbin)
A seller choosing to receive a buyer's earnest money after the buyer defaults on a contract is an example of:
liquidated damages
General principles of law
listed third in ICJ as source of law
A __________ is an employment agreement between the seller and the broker.
listing agreement
The __________ is the percentage of the lesser of the appraised value or sales price that the lender will loan.
loan-to-value ratio
customary law
major source of international law. The fact that states routinely abide by particular norm that is often considered sufficient for that norm to obtain the status of law, even if it's not codified in any agreement/treaty
Genocide
means any of the following acts committed with INTENT to destroy, in whole or in part, a national, ethnical, racial or religious group. The Spanish prosecution when charging Pinochet with this crime added political opinion as a reason that a specific group could be targeted. Important to remember that this an intent crime & a violation of a jus cogens norm & cannot be protected by state sovereignty or head of state immunity. Example: Civil war in Rwanda triggered this crime against the Tutsi minority.
subjective theory of contracts and mutual assent
meeting of the minds that looks at actual intention of the party rather than the party's conduct
RST2 §136:
memo may be made "at any time before or after" contract formed; more persuasive the evidence is true, readier court will be to combine the writings in Crabtree fashion
Avoiding Enforcement - Defenses
minors mental incapacity intoxication duress undue influence actual fraud fraudulent misrepresentation Material Misrepresentation Fraudulent Inducement Fraud by silence/ fraudulent non-disclosure Unconcionability Unconscionability + Fraud Public Policy
The four economic characteristics of land are: scarcity, fixity, situs and ________.
modification
A __________ is a pledge of real estate as security for the repayment of a debt.
mortgage
How to obtain enforcement under §139:
need to show that by virtue of his reliance he suffered injury that will not be compensable on any other basis.
Holmes on positive/negative rights + Sunstein Argument
negative rights ban/exclude government while positive ones invite and demand government -Negative=protect liberty -Positive=promote equality Conclusion: All rights are positive rights because all legally enforced rights require taxpayer dollars Sunstein: Conservative argument says welfare rights erode "real freedom" by making people dependent on the gov. But Rights=public goods Therefore, all rights are positive rights because all remedies are costly (including the enforcement of freedom)
A(n) ________ is a listing in which the real estate broker's commission is the difference between the minimum net established by the seller and the price that the buyer is willing to pay.
net listing
Self determination before 1945
no negative interference from other states. Principle of territorial integrity. Principle of non-intervention. Principle of sovereignty.
Precedent
not applied in international law, previous judicial decisions do not set the precedent for future cases
What constitues Religious beliefs?
not clear, but it doesnt require the recognition of a Supreme being....maybe..." belief must occupy a place in the believers life parallel to that occupied by orthodox religious beliefs"
Implied in law /Quasi-Contract:
not technically K's but created to avoid unjust enrichment
A(n) ________ occurs when a new contract is substituted for an existing one.
novation
State succession
this is when one state takes over territory of another state. Example- When west Germany and East Germany merged. Usually very straight forwards
Kellogg-Briand Pact 1928
obliged signatories to renounce war as an instrument of policy and to settle their disputes peacefully
breach
occurs when the promised performance falls due
Torture
one of the two intent crimes.
Unilateral Mistake
one party to a K is mistaken as to the terms or subject matter contained in the K- generally does not void K, and excuse performance under a K When Can you unwind? 1.Traditional test- required a mistake to be palpable- so obvious that the other party in the circumstances should have known a mistake had been made 2. 4 Pronged: to rescind an otherwise valid K based, the party seeking avoidance must show: the mistake was induced by the party seeking to benefit from the mistake There is no negligence or want of due care on the part of the party seeking a return to the status quo Denial of release from the agreement would be inequitable, and The position of the opposing party has not so changed granting the relief would be unjust 3. The Two-Pronged Test [lowest burden of proof for party seeking to avoid k] Party seeking rescission must show ... The mistake did not result from an inexcusable lack of due care The other party's position did not so change in reliance that it would be unconscionable to set aside the agreement 4.The Three-Pronged Disjunctive Test [RST§153] [more flexible method than old test for establishing unilateral mistake]: seeking to establish the defense of unilateral mistake must show... d was mistaken about a material fact at the time the parties made the k the effect of the mistake is such enforcement of the k would be unconscionable or the had reason to know of the mistake or caused the mistake (unconscionable here means severe or substantial lost) *NOTE: if you're here you better be bringing an unconscionable claim as well. the d did not bear the risk of mistake (a party bears the risk of mistake when the parties' agreement assigns the risk to the party or the party was aware at the time the contract was made, it only had limited knowledge about the facts relating to the mistake but decided to proceed with the contract.)
2207(2) Non-Merchants:
only way for additional term to become part of k is if the offeror explicitly assents to it. AKA additions become a proposal for addition to the contract and must be accepted as if it were a self-standing offer. Stick with CL rule of needing affirmative assent.
The four major types of listing agreements are, exclusive agency, net listing, exclusive right to sell and __________.
open listing
exceptions to SOF
part performance promissory estoppel
Mutual Mistake
parties each made a factual error about the meaning of a material term in the contract - renders K voidable Scrivoner's Error- when mutual mistake consists of failure of the written K to state accurately the actual agreement to the parties, reformation of the K to express the parties mutual intent is normally the remedy
benefit & a detriment
parties either do something they dont have to do or part with something they have a legal right to in order to obtain a benefit
Agreement to Agree on a Material Term
parties may be bound contractually when they have reached an agreement in principle, even though they contemplate further negotiations on particular points. Classical: agreement to agree as to a material term results in a void agreement. Because the parties are not silent, they have manifested an intention to fill the gap themselves. UCC §2204(3) & RST2§27: whether a contract is formed turns on factual question of whether the parties intended to be bound contractually at the point when they agreed, in principle, or only if further negotiations proved successful. (even where one or more terms are left open, a K does not fail for lack of definiteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.)
Agreement to Agree
parties may be bound contractually when they have reached an agreement on at least the major provisions of agreement, even though they contemplate further negotiations on particular points.
Market Change
party use of dramatic changes in the market does not amount to economic duress.
In a __________ lease, the tenant's rent is based, in whole or in part, on the receipts of his or her business.
percentage lease
Minors
persons below the age of 18 who the law has deemed incapable of understanding the consequences of incurring binding obligations. [Traditional Rule]- allows a minor to disaffirm or avoid a K even if there has been full performance and the minor cannot return to the adult what was received in exchange Necessaries exception: minor is liable for reasonable value of necessaries (items one needs to live- food, water, clothing, shelter). Ratification after reaching minority [RST §14]: voidable not void- Once the minor reaches the age of majority, she has the power to affirm or ratify the contract and then will be bound. [Minority Rule]- upon recision, recovery of the full purchase price is subject to a deduction for the minor's use of the merchandise (Dodson v. Shrader)
________ is the right of the government to regulate and control the way land is used.
police power
Usage of trade
practice or method of dealing so regularly observed in circumstances as to justify expectation that it will be here observed; existence and scope of such usage is proven as fact; if purported usage is written, court should interpret that writing (1) course of dealing and usage of trade supplement/qualify terms in agreement (2) all bases are interpreted as consistent, where possible; if not, then [express terms] > [course of dealing] > [trade usage] (3) trade usage should apply to parts of performance specifically governed by that usage (4) evidence of trade usage is inadmissible as evidence until other party has been given fair notice
Not civilised
pretty much all of Africa, large parts of Asia, Pacific Islands
diplomatic immunity
principle that nations cannot try and punish diplomats of other nations who violate their domestic laws. Example of an international law that emerged first through custom but was eventually codified in treaties
The formal judicial proceeding to prove the validity of a will and to distribute the assets of a decedent's estate is calle
probate
The formal judicial proceeding to prove the validity of a will and to distribute the assets of a decedent's estate is called:
probate
1ST Amend - Establishment Clause
prohibits laws respecting the establishment of religion
1st Amend - Free Exercise Clause
prohibits the govt from punishing someone on the basis of the person religious beliefs
Promissory Estoppel Elements RST (2d) §90
promise clear and unambiguous on its terms reliance by the party to whom the promise is made (the reliance must be both reasonable and foreseeable); and the party asserting the estoppel must be injured by her reliance
Bilateral K
promise for a promise
Baird v. Gimbel Bros. [sub old rule]
promissory estoppel could not apply, because there was no binding promise of an irrevocable offer and there was no consideration for such a promise. Nor was court willing to treat subs bid as an option
Ongoing expenses such as property taxes and property owner association fees that are divided between the buyer and the seller at closing are called __________.
prorations
Asylum
protection by a nation to a person who has left their native country as a political refugee
RST1§45
provides protection to the offeree against revocation of an offer to enter into a unilateral contract when the offeree has relied on the offer by beginning the requested performance [Cook v. Caldwell banker]
Guiding principle in application of good faith
ps interest is internal to the understanding of the parties and good faith requires that d not exercise such discretion as it may have under the literal terms of the k to thwart ps expectation or purpose
The French term __________ means a life estate that is based on the life of another.
pur autre vie
A ________ is a deed with no guarantees or warranties.
quitclaim deed
Classifications that are neither burdensome nor suspect are given....
rational basis analysis, which requires that the classification bear some rational relationship to any conceivable legitimate governmental interest
Universal Jurisdiction
refers to the idea that a national court may prosecute individuals for any serious crime against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international community or international order itself, which individual States may act to protect. Example: Spanish law & courts used universal jurisdiction to charge Chilean dictator, Pinochet, with genocide (re: political opinion), torture, and terrorism.
__________ implements the Real Estate Settlement Procedures Act.
regulation x
jurisprudence constante
rendering decisions that are sequentially consistent
Firm Offer Rule
requirements to make an irrevocable offer for sale of goods without consideration. (1) Offeror must be a merchant ONLY (2) Offer must be in a signed writing or other record (3 )If language of irrevocability is on a form supplied by offeree, the offeror must sign twice- once to make the offer and must separately sign the clause providing for irrevocability (4) Writing must contain language of irrevocability [explicit assurance] (5) Period of irrevocability must not exceed 3 months [if offer does specify period of firmness >3 mos. it will be limited to 3 months unless consideration has been given or the firm offer is extended through a renewal.]
human rights
rights that all human beings possess whatever their nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status
__________ of RESPA prohibits any person who, pursuant to any agreement or understanding, gives or receives a fee or a thing of value for the referral of settlement business.
section 8
The least common form of mortgage financing is
seller financing
According to the Deceptive Trade Practices Act (DTPA), brokerage falls under the category of ________.
services
constructivism and international law
shaping norms and identities
RST2§69: acceptance by silence
silence by the offeree rarely amounts to acceptance, but in some limited circumstances an offeree's silence may result in formation of a contract. Ok if parties mutually agreed silence=assent Course of dealing Someone takes offered services with a reasonable opportunity to reject them, and it is reasonable for the person to understand that services are offered with expectation of payment
realism and international law
skeptical about effectiveness, few enforcement mechanisms. states pick and choose
A(n) ________ is a business venture that is owned by one individual.
sole proprietorship
refugee
someone who has been assessed as having been forced to flee their country due to war, persecution, or natural disaster
UN Security Council Resolution 1373
sought to stop terror groups
Bill is the buyer purchasing a property from Sally. All contingencies have been met and the parties are ready to close. One day prior to closing, Sally announces that she has changed her mind and is going to keep the property. Bill is determined to complete the purchase and acquire the property. The only default remedy in the contract that could result in Bill acquiring the property is___________________________.
specific performance
avoid the mailbox rule
state that acceptance will not occur until received by the offeror. [this is better for offeror]. Will not apply if offeror has stated (expressly or implicitly) that he must receive the acceptance for it to be effective.
Compulsory jurisdiction
states accept ahead of time the ICJ's jurisdiction. Some states have agreed to it with the restriction that they will accept compulsory jurisdiction only if the other state has too.
...
states can regulate general conduct even if it interfers with the Free Exercise Clause unless its neccessary to promote a compelling interest
Act of State Doctrine
states that every sovereign state is bound to respect the independence of every other sovereign state, and the courts will not sit in judgment of another government's acts done within its own territory. Act of State --> accusing a state of something (i.e. spying, nefarious financial activities.) Example : Even though the US might not like that Canada is letting in refugees, it cannot do anything since it is done on Canada's territory.
Actors on the international stage
states, international organisations, legal persons (NGO's, GONGO's, multinational companies), natural persons.
Which of the following requires a contract for the conveyance of real estate to be in writing to be enforceable?
statute of frauds
__________ is the body of laws and regulations enacted by federal and state legislative bodies.
statutory law
Unilateral agreements
still binding for implicated states
MINORITY Definition of good-faith
still have old definition of it just meaning 'honesty in fact', at least for parties who are not Article 2 merchants
Classifications that burden constitutionally protected rights and classifications that are inherently suspect are classified under...
strict scrutiny, which means that the test must be narrowly tailored to fulfill a compelling state interest
The term __________ is synonymous with contingent.
subject to
Application of IL for non-civilised states
subject to no IL at all. Free to colonise should one feel like it.
subsidiary
subordinate; secondary
judicial decisions and the teachings of the most highly qualified publicists of the various nations are _______ means for determining rules of law
subsidiary
No Punishment of Religious COnduct Soleley Becasue It Is Religious
such a law invaldi unless its neccessary to promote a compelling interest
Impracticability
sufficiently different performance then was was contemplated (without fault) Extreme cost differences apply to impracticability (Mineral park Land v. Howard) An intervening event that makes performance impracticable must be: Due to acts of god/ 3rd parties Need extreme/ unreasonable difficulty or risk of injury but more than increase in cost Must show reasonable effort to overcome obstacles Basic assumption test Must look at all circumstances including terms of K Non-foreseeable is significant Foreseeable- doesn't necessarily preclude bc parties might have not thought it to be such a risk that they made it subject of their bargain Relative bargaining power considered
Treaty termination - jus cogens superveniens
temporal invalidity, i.e a treaty might be valid at its conclusion, but a new jus cogens norm emerges, thus effectively nullifying the treaty, through terminating it.
Article 24
the council has the 'primary responsibility for the maintenance of international peace and security'
Universal Declaration of Human Rights
the declaration adopted by the United Nations General Assembly on 10 December 1948 that sets out basic human rights that should be universally protected
Offer
the manifestation of willingness to enter into a bargain, which justifies another person in understanding that his assent can conclude the bargain. An offer is something that creates the power of acceptance.
Li
the primary form of order for most social life. soft law, for less serious cases, relies on morality based on Confucianism, social alienation, communal shame.
Self Determination
the process by which a country determines its own statehood and forms its own allegiances and government.
self-determination
the process by which a country determines its own statehood and forms its own allegiances and government.
elements of repudiation
the promisor must (1) clearly, unequivocally, and (2) voluntarily communicate an intention not to render the promised performance when it falls due
Two elements to establish Customary International Law (from Art38 of ICJ Statute)
the rule has (1) been followed as a "general practice", and (2) has been "accepted as law".
Easterbrook (subtraction), [majority]
the term waiver should be interpreted traditionally (no reliance). A waiver is a subtraction and a modification is an addition. if something is taken out of the K, then use 2-209(4) but if something is added, it is excluded.
consideration in unilateral k
there is no mutuality of obligation because one party is generally not bound to continue her performance
Treaties aren't valid when
they breach international law, violates an internal rule of fundamental importance (French constitution states that commercial treaties shall be approved in parliament before ratification.), are signed through corruption, or are signed through coercion.
The most common form of financing used by buyers is:
third party financing
Pay When Paid Clause
this is a clause that if you were representing the general contractor you would put it into the contract-->this is just a place where courts say we are not going to construe that literally-> subcontractor does not get paid unless GC gets paid unless very very explicit language that makes this clear to subcontractor before they enter the deal
________ is evidence an individual has of his or her right to possess land.
title
RST (2d) § 261
to claim impossibility, a party must demonstrate that: (1) the occurrence of an event made performance under the contract impracticable (2) the non-occurrence of the event was a basic assumption on which the contract was made (3) the impracticability resulted without the fault of the party seeking to be excused from the contract (4) the party has not agreed to perform despite impracticability that would otherwise justify the nonperformance.
Restitution goal
to prevent unjust enrichment: Where one party renders service to another party with consent or knowledge, there is presumption that the benefactor expects to be compensated; the law implies a promise from the beneficiary to pay. Restitution is a quasi-contract, meaning that it isn't a real contract, so rights to contract don't apply
veto
to reject a bill by refusing to sign the legislation
positive law tradition
tradition that holds that laws need to take into account the ways in which people (and states) actually behave. Attempts to rigidly translate moral principles into law w/out regard for the realities of human behavior are unlikely to be very successful
natural law tradition
tradition that holds that universal moral principles should form the basis for laws
unilateral contract
traditional rule , delayed acceptance untill goods are delivered
assignments
transfer of contractual rights transfer of rights during a contract
An offer may be withdrawn at any time prior to its acceptance by the offeree
true
Buyers' and sellers' marital status is not required in the contract.
true
Real estate agents play a role that includes arranging for the pre-qualification / pre-approval of buyers.
true
There is no upper limit on the value of a Texas homestead.
true
A(n) __________ is an entity created for the benefit of another.
trust
Police v Abdul Zohoor Razamjoo [2005
two female witnesses request they be allowed to where burqas when addressing the court. Judge compromised and allowed the cross examination to take place in just the view of the judge, counsel and female court staff. Raised the important issue of how to balance religious rights with a defendant's right to a fair trial.
Undue Influence
unfair use of a person's relationship or position to put excessive pressure on another party to enter into a contract, or to agree to certain terms which unjustly benefit the party exercising the influence Relationship technically not required but significant factor in court's assessment Factors to determine (don't need all) 1. Discussion of transaction at an unusual or inappropriate time 2. Consummation of the transaction in an unusual place 3. Insistent demand that the business be finished at once 4. Extreme emphasis on untoward consequences of delay 5. Use of multiple persuaders by the dominant side against a single servient party 6. Absence of third-party advisers or attorneys 7. Statements that there is no time to consult a financial advisors or attorneys
A contract in which only one party is obligated to perform is a________ contract.
unilateral
An option is:
unilateral contract
an option contract is:
unilateral contract
UDHR
universal declaration of human rights.
States Can Regulate General Conduct - Criminal Laws and Other Regulations
unless it is shown the law was motivated by a desitre to interfere with religion
UCC 2-206(1): Acceptions
unless offeror 'unambiguously' indicates how acceptance should be made, "an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances. BUT for contract to be enforceable it must be specific as to essential terms, such as identity of parties, subject matter, consideration, quantity term and price term.
Additional v. Different Terms
use knock out rule and go to 2207(3) AND there is also an opportunity to engage in an inquiry regarding the distinction between additional and different terms. ==> 2207(1) discusses additional & different terms while 2207(2) only address additional terms as a possibility of becoming part of the contract Johnson/Most courts: read the omission of 'different' terms from 2207(2) to mean that "different" terms in the acceptance or confirmation drop out altogether and cannot become part of the contract. Minority: comment 3 alludes to the fact that this might have been scrivener's error.
Counter Offer in an Option Contract
usual rule that counter offer terminates power of acceptance does not apply.
Fa
usually reserved for criminal acts, government and the military. Offender was from outside jurisdiction, positivism, harder version of the law, clear penalties
weaknesses of international law
vague and conflicting obligations (treaties) and in some aspects it's not an "effective" legal system -Lack of compulsory jurisdiction and absence of judicial hierarchy -Powerful states ignore when conflicts w/ interests
If a property violates zoning, the owners must request a(n) ________.
variance
If property violates zoning, the owners must request a __________, which is permission to violate the rules.
variance
constructive condition
viewed by the courts more as a promise doctrine of strict enforcement does not apply
Classical View and Unilateral Contracts
viewed the offeree's rendering of the requested performance as serving both as the consideration for the offeror's promise and as his acceptance of her offer. Offeree free to not perform at all, without liability, but once he has completed the performance as requested, the offeror's commitment is a binding one. Old Abuse: only pay upon completion, makes it unilateral, revoke on last day.
A(n) ________ is a provision in a contract that requires that a certain act or event happens in order for the contract to be binding on the party.
waiver
Before 1945
war was perfectly alright in the eyes of international law. Claus von Clausewtiz, On War, 1832. War is a mere continuation of policy by other means. War was an essential mechanism of state-state interaction. Enforcement mechanism. Retaliation. Example 1902/1903: Dispute btw Britain/Germany and Venezuela. Concerning failed payments of a loan. Legal obligation to reimburse nationals of GB and Deutschland. They didn't, obviously, bc it's Venezuela. British and German forces carried out a military intervention. Sank the fleet. Bombarded ports and cities. War was accepted as a sanction my the international community. If there was a dispute, war was the answer, a peace treaty a solution. Example Elsaß-Lothringen. Given to Germany at first, in 1871, but then given back to France after the treaty of Versailles 1919. After 1945 it became illegal to declare war without proper reason n stuff. Article 2, paragraph 4. All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Article 51 states that it's totally fine to act in self-defence.
Customary international law is stronger or weaker than conventional international law
weaker
Forfeiture
when a contract has been substantially performed and the cost of rectifying the immaterial and nonwillful breach is disproportionately large in relation to the value of the benefit that full performance will confer on the plaintiff, diminution of the ultimate value of the performance may be a more appropriate measure of damages. courts less sympathetic with breach of express condition, more likely to work for constructive condition
compulsory jurisdiction
when legal bodies can force parties to appear before them and be bound by their final decisions. Domestic legal systems usually enjoy compulsory jurisdiction, whereas international legal bodies do not
General principles of construction
when meaning of terms are in dispute, courts interpret (1) objective is to align terms with parties' intentions (2) bargained-for/negotiated terms trump standardized terms (3) narrow evidence (express terms, course of performance) trumps broader evidence (course of dealing, trade usage
counterargument to bad faith claim
when party truly believed, they did have a remedy in breach [objective reasonableness + subjective honesty]
utilitarian compliance
when people or states abide by laws because they think it is in their interests to do so
bilateral
where a treaty exists between Australia and one other country
multilateral
where a treaty exists between Australia and two or more countries
Requirements Contracts
where the quantity term is measured by the buyer's requirements
Ubi societas ibi jus
where there is society there is law, rules and laws emerge organically in congregations of people
International Legal Person
who/what entity is capable of possessing rights, protections, privileges, and duties under international law
Customary International Law
widespread and consistent practice of states done out of a sense of legal obligation (opinion juris) Widespread- a lot of states are doing it. There is not specific number, you must argue depending on your case. Consistent- IT is not an isolated case. Usually needs to be practiced over time. Declaration is usually a word used to describe custom
treaties
written international obligations which a country is bound to observe