Weak Simulated Exam Points

Questions I got wrong on the simulated MC barbri Exam in notecard form

When does 3rd party beneficiary rights vest?

When 3rdP does any of these:

(i) manifests assent to the promise in a manner invited or requested by the parties;

(ii) brings suit to enforce the promise; OR

(iii) materially changes position in justifiable reliance on the promise

Best Evidence Rule

Original writing must be produced when proving the material terms of the writing. Oral/secondary evidence ONYL allowed if OG evidence is unavailable for satisfactory reason

Best Evidence Rule is only used when

Either

1) writing is a legally operative/dispositive instrument (ex. contract, deed) OR

2) knowledge of the witness only came from reading evidence in writing

Exception to Best Evidence Rule (aka when can secondary source by used when OG should normally be used)

1) Inconvenience due to Volume of Records → can use charts

2) Certified Public Records → can use copies

3) Writing Collateral to Main Issue

4) Opponent’s words about the writing = admissible

Which Amendmnet is Right to Counsel?

6th Amendment (offense specific- can question about diff crimes)

Which Amendment gives Miranda?

5th Amendment (not offense specific- must seize all Q even for unrelated crimes

Which Amendment + right is crime/offense specific and which is not?

The 6th Amendment is crime/offense specific for the Right to Counsel, while the 5th Amendment is not offense specific regarding Miranda rights.

Can police lie to defendant that lawyer is contacting him/coming? Can police lie to lawyer that they don’t question defendant until the lawyer arrives?

Yes, they can lie about both.

Difference in 5th and 6th Am Right to counsel?

5th am right to counsel = Miranda and applies when D is in custodial interrogation.

6th am right ot counsel attaches at start of formal judicial proceedings.

P Successful Chattel Conversion Action Damages

FMV of chattel converted as of time and place of conversion (think of it as a forced sale)

D can keep the converted chattel though.

Suspect Classifications under Equal Protection

Use Strict Scrutiny (necessary ; compelling gov purpose)

Include:

• Alienage (non-citizenship)

  • (w/ exception of state gov functions)

• Race

• Ethinictiy/National Origin

Quasi- Suspect Classifications under Equal Protection

Intermadiate Scrutiny (substantially related ; important gov purpose)

• gender/sex

• non-martial children

• undocumened immigrant children

Is cross-claim compulsory

A v B and C → B wants to assert claim against C

No, permisisible but not compulsory

to use Negligenc per se; must show

Establishes duty and breach automatically if:

1) he is in class intended to be protected by statute;

2) statute was designed to prevent type of harm that waas sufferred

diff Tort Liabilities theories like joint pure comparative etc. _____

When can clerk enter default judgment? vs Judge

Clerk can enter if:

1) D has made no response;

2) Claim is for a definite sum of money;

3) P gives affidavit of sum owed; AND

4) D is not minor/incompetent

Otherwise always have judge enter

Criminal Assault

either

(i) the attempt to commit a battery (specific intent) OR

(ii) the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm

Specific Intent Crimes

Solicitation; Conspiracy; Attempt

Forgery

Assault

Larceny

Embezzlement

First degree murder

Robbery

Burglary

False pretenses (fraud)

Contracts Clause of Constitution

Prohibits states from retroactively and substantially impairing EXISTING K rights UNLESS there’s a reasonable and narrowly tailored means of promoting an important and legitimate gov interest.

If gov K being impaired → strict scrutiny

Ex Post Facto Law

Prevents enforcement of laws that retroactively alter CRIMINAL law (not civil)

ex. punish conudct that was lawful when it was done; increase punishment for crime after it was committed.

Is the gov granting land for a business to open sufficient gov action for the business to be state action?

No, the state must affirmatively facilitate, encourage, or authorize the acts.

SoF Surety applies when?

Promise by a third party (the surety) to be responsible for the debt or obligation of another (the principal debtor) to a creditor.

• BUT ONLY COLLATERAL promises fall under the statute and must be in writing

• Primary promises don’t have to be in writing

  • where main purpose of the promisor is to benefit himself

Invasion of privacy Torts

1) false light

2) appropriation of picture/name

3) Intrusion on seclusion

4) Public disclosure of private facts

False Light

Privacy Tort where

D publicly circulates that P has views they don’t have or does actions they did not do

Must be highly offensive to a reasonable person

Appropriation of picture/name

Privacy Tort involving unauthorized use of P’s pic/name for D’s commerical advantage

Intrusion on seclusion

Privacy Tort

Acts of prying/intruding onto something with a reasonable expectatino of privacy that is highly offensive to a reasonable person

ex. secretly recording someone in their home

Public disclosure of private facts

Privacy Tort

public disclosure of private facts about P that is highly offensive to reasonable person

Unless matter is of legit public interest then 1st Am protects

Acceptance of K standard

Tested by an objective standard- would a reasonable person presume acceptance

What is a party-opponent statement?

ADMISSIBLE NONHEARSAY

Declaration against interest Hearsay Exception

Only applies when declarant is unavailable

Statement under belief of imminent death available when?

NEED ALL

1) Declarant Unavailable

2) this is homicide or civil case

3) statement related to this death like injury

4) declarant believed he was gonna die

State law preemption for police powers?

For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.

When is there implied preemption of state law?

1) It’s the intent of the federal government to occupy the entire field with its regulation;

2) the state law directly conflicts with the federal law

3) The state provisions prevent achievement of federal objectives

M.P.C. Knowingly

Result of Conduct: He knows that his conduct will necessarily or very likely cause such a result.

Nature of Conduct: He is aware that his conduct is of that nature or that certain circumstances exist.

Supplemantal Jurisdiction requires

claim derive from the same common nucleus of fact ; and

are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding.

If experienced narcotics officer pats down someone in Terry stop and thinks there’s weed on them b/c of the pat down (ex.felt tubes)- and reaches in. Can those be supressed?

No, the scope of the frisk is limited to a patdown of the outer clothing for concealed instruments of assault,

BUT the officer may reach into clothing and seize any item that the officer reasonably believes, based on its "plain feel," is a weapon or contraband.

does initial disclosure requires names? w/o request by other party?

Without waiting for a discovery request, as an initial disclosure, a party must provide the names of individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses

What’s an illusory promise?

When there’s not consideration on both sides of the K

Defamation

P must show:

1) defendant published a defamatory statement of or concerning the plaintiff that damaged his reputation,

2) falsity of that statement, and

3) fault on the defendant's part

• Public official → actual malice: knowledge that statement was false; or reckless disregard to truth or falsity

Petty offense vs serious offense?

Petty = 6 months or less imprisonment- can set own jury requirements

Serious = anything more than 6 months - must have at least 6 jurors and must be unanimous

Buyer got Warranty Deed from O; gov tries to take land because of prior foreclosure issue thing; Buyer sues O- result?

Buyer wins because O in warranty deed gave covenants of quiet enjoyment and warranty- protecting B from a 3rd party lawfully interfering with posession of the grantee or successors.

6 covenants in a warranty deed

W for precessors too

Present: Grantor

1. owns estate (title and possession)

2. has power to make conveyance

3. no encroachments on land

Future:

1. Quiet enjoyment: no lawful 3rd P claims of title

2. Warranty: will defend against above reasonable claims

3. Future assurances: will do whatever to perfect title

Junior mortgagee rights during foreclosure

right to pay it off senior lien(i.e., redeem it) to avoid being wiped out by its foreclosure

different from redemption rights which is only for fixed period of time after foreclosure sale

Accord

An accord is an agreement in which one party to an existing contract agrees to accept different performance for that K

Accord does not discharge the prior contract- merely suspends the right to enforce it

Once performance of accord satisfied- discharged both accord and prior agreement.

When is an objection to venue waived?

if not asserted in the first response to the complaint (doesnt matter if it’s answer or 12b motion)

Is recovery for humiliation actionable under a tort theory?

Yes it is a recognized element of damages of intentional torts

License vs Profit

License permits someone to come onto land and do something BUT not remove anything

Profit allows to take something off land

Appurtenant vs In gross

Appurtenant: 2 parcels of land

• burdens one land to beneift another

In gross: 1 parcel of land

• holder has benefit to a servient/burdened land

How to determine extent of prior hearing/due process rights?

Weighing

(i) the importance of the individual interest involved,

(ii) the value of specific procedural safeguards to that interest, and

(iii) the governmental interest in fiscal and administrative efficiency.

If state interest really outweights right to prior hearing its ok

First Amendment Religious Clauses

1. Free Exercise Clause:

   • prevents the government from establishing a state religion or favoring one religion over another (separation of church and state)

   • cant use to challenge neutral law

2. Establishment Clause

   • protects individuals' right to practice their religion freely, without government interference

   • founding fathers views

Exceptions to negligence per se

1. compliance with the law would cause greater risk of harm than violation (ex. emergency)

2. compliance was impossible

Duty to rescue/ duty when you rescue

no general duty to affirmatively act for the benefit of others (aka no general duty to rescue)

BUT if undertake rescue- must be reasonably prudent in doing so

Theft by False Pretenses

when D

(i) obtains title;

(ii) to the property of another;

(iii) by an intentional (or knowing) false statement of past or existing fact;

(iv) with the intent to defraud another

Forgery

(i) a making or altering;

(ii) of a false instrument;

(iii) with the intent to defraud.

Embezzlement

(i) the fraudulent;

(ii) conversion;

(iii) of the property; (iv) of another;

(v) by a person in lawful possession of that property

Larceny by trick

Possession of property conveyed rather than actual title

Can you appeal certification of a class action immediately or must you wait?

This interlofutory order can be appealled within 14 days of granting order

When is prior identification hearsay allowed?

when it’s a declarant witness subject to cross

Does assignment need to be in writing to be enforceable? Does it need consideration to be enforceable?

Nope and nope

Can the obligor (new 3rdP) raise K defenses the assignor had against the asignee?

No

Arson- charrings vs scortching

charring is burning

scortching is not enough to be a burn

“undivided one half interest in land” vs “one half interest in land”

Undivided

• created in tenancy in common

• one-half interest as to the entire tract;

One-half

• created in joint tenancy

• All interest in a one-half part of the tract

Can you impeach someone not @ the trial as a witness but what they said was admitted into evidence through someone else?

Yes, a statement by a declarant made at any time that is inconsistent with the hearsay statement may be offered into evidence for impeachment purposes

Characterizations for others on your land:

These determine duty a landowner owes to this person

invitee, licensee, known/discovered trespasser, unknown trespasser

Invitee

One who enters onto the premises w/ permission for benefit of the landowner. Can lose status as an invitee if exceeed the scope of the invitation

ex. public store, hotel

Licensee

one who enters on the land with the landowner's permission, express or implied, for his own purpose or business rather than the landowner's benefit

Unknown and Anticipated/Discovered Trespasser

unknown: no idea this person is here

anticipated: pattern of trespassing in past or owner discovers them

Duty to unknown trespasser

None, but can’t use deadly force to prevent them from coming

Duty to Anticipated/Discovered Trespasser

Duty to warn of or make safe

“known man-made hidden death traps”

1) artificial conditions

2) known to the landowner

3) that involves a highly dangerous risk and

3) that the trespasser is unlikely to discover (concealed)

Duty to Licensees

Duty to warm or eliminate hazardous condition

1) concealed from licensee; and

2) known by landowner

Duty to Invitees

Duty to warm or eliminate hazardous condition

1) concealed from invitee and

2) known by OR should have been known by landowner through reasonable inspection

Can you appeal from state trial court to federal court if federal issue invovled?

No, must exhaust all state appellate remedies before seeking review in fed courts even if fed issue is involved.

What category is silence as adoptive statement?

opposing party’s statement - which is admissible nonhearsay

Subsequent Remedial Repairs/Measures admissible?

Not to prove negligence under public policy, but can be used to prove other issues like ownership

Novation

when create a new K from an old K- where everyone agrees to substitute a new party for an existing party

• immediately extinguishes/discharged old K duties of the OG parties - removing liability

• NOT SAME AS DELEGATION

Delegation vs Novation

Delegating party will always be liable

Novation distinguishes liability under old OG parties K

Common Law Murder

“unlawful killing of a human w/ malice aforethought"

• 1st degree (specific intent)

• 2nd degree (general intent)

• Malice aforerthought exists if:

  • intent to kill (1st degree) (specific intent)

  • intent to inflict great bodily harm (2nd degree)

  • reckless indifferent to an unjustifiably high risk to human life; or (2nd degree)

  • intent to commit a felony (felony - which is also under 1st degree)

If LL asks -before rend period ends- for increase rent for next term, Tenant will have?

If LL asks -after rent period ends- for increase rent for next term?

Commercial: (year to year if og lease for year or more)

Residential (month to month)

Before: New rent regardless of whether LL cashed check for old rent

After: Old rent if LL cashes check

advisory opinions?

federal courts cannot issue these because it’s not a “case and controversy” under Article III

ex. a “recommendation” is advisory

when can felony murder rule be applied?

Only when the underlying felony is independent of the killing (thus, assault; battery not count)

Felonies: BARRK

Burglary, arson, robbery, rape, kidnapping

Rule of Perpetuities only applies to:

1) contingent remainders

2) executory interests

3) vested remainder subject to open

If jury award is execcesive/too little can the court lower or add onto it?

No, the court must give P/D the choice to either: accept a lower/higher damage award or accept a new trial.

Remitter (lowering damages)

Additur (increasing dmgs) - not allowed in fed court

Jury Damages Inadequate or Excessive options

Additur: adding onto damages- violates parties right ot a jury trial so not allowed in federal court- but allowed in state

remittitur: lowers damages and is allowed

give choice of one of these or new trial

Requirements for open term K offer

If the term assuring that the offer will be held open is on a form supplied by the offeree, it must be separately signed by the offeror.

UCC firm offer

Term assuring that the offer will be held open for X amount of time

• must not exceed 3 months but if it doesn, will remain valid for 3 months before invalidating rest

• must be in signed writing

• if offeree provides form- offeror must separately sign another form

A right of first refusal

gives its holder the preemptive right to meet any third party's offer to purchase real estate.

valid restraint on alienation if its reasonable

Negligent Infliction of Emotional Distress

1) P almost hurt: (1) was in zone of danger and (2) physical symptoms/mannifestationof distress

2) D negligently injures 3rdP (1) who was closely related to P; (2)P was present @ scene and observed event; which (3) caused emotional distress;

3) P can recover if highly foreseeable that D’s careless performance in business relationship causes emotional distress to P

Negligence in products liability

Duty: arises when D acts as a commercial supplier of products.

A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component.

Breach: P must show (i) negligent conduct by D that leads to (ii) the supplying of a defective product.

Buyer of land dies in escrow leaving real property to A and personal property to B. Can A compel B to pay purchase price?

Yes

Amendment appliying Equal protection to states vs to fed gov

14th to states; 5th to fed gov

is due care an element of tresspass to land

no

when does ficture attach to real property?

Maybe if the one who attached it intended that it become part of the real property

??? maybe more to this

Charges separated into 2 diff trials- double jeopardy?

Where charges can be tried in a single trial, but the defendant consents to having two separate trials, there is no double jeopardy violation even if lesser included offense

Which laws/rules apply for service?

Can use any;

1) federal rules

2) state rules of state court sits

3) state rules in which service actually occurs

pure comparative negligence

P can recover even if fault % higher than D’s

Intentional infliction of emotional distress

P must show:

(i) extreme and outrageous conduct by D

(ii) D’s intent, or recklessness

(iii) causation,

(iv) damages (no physical injury needed)

Is a K in breach if construction does not begin on date agreed upon?

No breach until theres an absolute duty to perform/absolute promise in the K

work-product doctrine immunity

Documents prepared in anticipation of litigation by a party or its representative are not discoverable unless the opposing party can show substantial need and that it cannot obtain the materials in an alternative way without undue hardship

this is a qualified immunity, not complete~

Robbery

Larceny from the person or presence of the victim

by means of violence or intimidation

~use of force constituting a battery is sufficient for robbery

~ use of force to overcome a victim’s resistence is also sufficient

Larceny

The taking

and carrying away

of the tangible personal property of another

by trespass

with the intent to permanently deprive the person of his interest in the property.