Studicata QuickSheets July 2020 Unlocked

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Uniform Bar Exam / Multistate Essay Exam
July 2020
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BUSINESS ASSOCIATIONS
AGENCY RELATIONSHIPS the key factor in determining whether an agent is an
CREATION: An agency relationship is created when: independent contractor. Other relevant factors include:
1. The parties voluntarily consent to enter into an 1. The nature of the work
agency relationship; AND 2. The skill required in the particular occupation;
2. The agent is subject to the principal’s control. 3. Who supplies the equipment or tools to perform the
work;
TERMINATION: The agency relationship may be terminated
4. The method of payment (hourly, salary, etc.);
by the parties if the:
5. The length of the employment; AND
1. Agent or principal manifests to the other the desire
6. How the parties characterize the transaction.
to cease the agency relationship;
2. Express terms of the agency expire; OR PARTNERSHIP TYPES AND FORMATION
3. Purpose of the agency relationship is fulfilled. GENERAL PARTNERSHIP (GP): A GP is a type of partnership
The agency relationship may be terminated by operation of that has no limited personal liability. A GP is formed when:
law if the: 1. Two or more person;
1. Agent or principal dies; 2. Associate as co-owners;
2. Agent or principal loses capacity; OR 3. To carry on a business for profit.
3. Agent materially breaches a fiduciary duty owed to LIMITED PARTNERSHIP (LP): An LP consists of one or more
the principal. general partners and one or more limited partners. General
AUTHORITY TO BIND PRINCIPAL: An agent may bind a partners remain personally, jointly and severally liable for all
principal to a contract if the agent is acting within his actual debts of the LP, while limited partners are personally liable
or apparent authority. Once a principal is validly bound to a for debts only to the extent of their investment in the LP.
contract by his agent, the principal is liable under the terms of Formation. An LP is formed when a written certificate of
the contract. limited partnership is executed in substantial compliance
ACTUAL AUTHORITY: An agent acts with actual authority with state law and filed with the secretary of state.
(express or implied) when the agent reasonably believes, in LIMITED LIABILITY PARTENRSHIP (LLP): An LLP limits a
accordance with the principal’s manifestations to the agent, partner’s potential liability for professional malpractice that is
that the principal wishes the agent to act. committed by another partner. Any partnership may become
Express Authority. Actual express authority exists when an LLP upon the:
the principal directs the agent to engage in the precise 1. Approval of the partners by vote; AND
task in question. 2. Filing a statement of qualification with the secretary
of state.
Implied Authority. Actual implied authority exists when
the agent believes, based on a reasonable interpretation PARTNERSHIP LIABILITY
of the principal’s words or conduct, that the principal TORT LIABILITY: General partners are jointly and severally
wishes the agent to act on his behalf. liable for all obligations of the partnership arising from any
APPARENT AUTHORITY: An agent acts with apparent wrongful act or omission of any partner acting:
authority when: 1. Within the ordinary course of business; OR
1. The principal holds the agent out as having authority 2. With the authority of all other partners.
to act on the principal’s behalf; AND Limited partners are not personally liable for obligations of
2. The principal’s conduct, when reasonably the LP arising from the wrongful acts or omissions of other
interpreted, causes a third party to rely on the partners (they are always liable for their own misconduct).
agent’s appearance of authority when dealing with CONTRACT LIABILITY: Each partner is an agent of the
the agent. partnership. Therefore, the actions of every partner that are
PRINCIPAL/AGENT VICARIOUS LIABILITY made within the ordinary course of business to carry on the
RESPONDEAT SUPERIOR: An employer (principal) may be partnership’s business bind the partnership, unless the
liable for torts committed by an employee (agent) if: partner taking the action:
1. An employer-employee relationship exists; AND 1. Has no authority to act on behalf of the partnership;
2. The employee’s commission of the tort occurs within AND
the scope of employment. 2. The other side has knowledge or notice that the
partner lacks authority.
INDEPENDENT CONTRACTORS: Generally, a principal is not
liable in tort for the unauthorized conduct of an independent DUTIES OF THE PARTNERS
contractor. The principal’s amount of control over the agent is DUTY OF CARE: Each partner owes a limited fiduciary duty of
© 2020 Studicata | www.studicata.com Business Associations 1

care to the partnership and other partners, which requires CORPORATION FORMATION
that each partner refrain from engaging in: ARTICLES OF INCORPORATION: Generally, a corporation is
1. Grossly negligent or reckless conduct; formed when the articles of incorporation are filed with the
2. Intentional misconduct; OR secretary of state (unless the articles specify a delayed
3. A knowing violation of the law. effective date).
DUTY OF LOYALTY: Each partner owes a fiduciary duty of Amendments. The articles may be amended if there is a
loyalty to the partnership and other partners, which requires majority vote from the directors and shareholders.
that each partner: However, minor amendments may be made by the board
1. Act in good faith and fairly toward the other of directors without shareholder approval.
partners; CORPORATE BYLAWS: Corporate bylaws are written rules of
2. Account for any property, profit, or benefit derived conduct that must be initially adopted by the incorporators or
by the partner from the partnership business; AND board of directors. The bylaws may contain any provision for
3. Refrain from: managing the business and regulating the affairs of the
a. Competing with the partnership; AND corporation to the extent that is consistent with the law and
b. Usurping a business opportunity that articles of incorporation. If there is a conflict between the
properly belongs to the partnership. articles and bylaws, the articles of incorporation govern.
EFFECT OF BREACH: If a partner breaches the duty of care or Amendments. The bylaws may be amended or repealed
loyalty, he may be held personally liable for damages. by the corporation’s shareholders. The board of directors
PARTNERSHIP DISSOLUTION may also amend or repeal the bylaws unless the
DISSOLUTION: Dissolution of a partnership does not shareholders expressly specify otherwise.
immediately terminate the partnership. Rather, the PIERCING THE CORPORATE VEIL
partnership enters a “winding up” phase, which continues GENERAL RULE: Generally, shareholders of a corporation are
until the winding up of the partnership’s affairs is completed. not personally liable for the debts of the corporation.
CAUSES: There are three main causes of dissolution However, the major exception to this rule is the doctrine of
1. Actions taken by the partners (e.g., dissociation); piercing the corporate veil.
2. Operation of law (e.g., the partnership’s business PIERCING THE CORPORATE VEIL: Courts will allow a creditor
becomes illegal); OR to pierce the corporate veil and hold a shareholder personally
3. Court order (e.g., a judicial dissolution may be liable for the debts of a corporation when:
granted if it becomes impracticable to continue the 1. The shareholder has dominated the corporation to
partnership’s business). the extent that the corporation may be considered
UNIFORM PARTERNSHIP ACT (UPA): Under the UPA, any the shareholder’s alter ego;
change in partner membership automatically triggers 2. The shareholder failed to follow corporate
dissolution of the partnership unless there is an agreement to formalities;
the contrary. 3. The corporation was undercapitalized; OR
REVISED UNIFORM PARTERNSHIP ACT (RUPA): Under RUPA, 4. There is fraud or illegality present.
absent an agreement to the contrary, the “disassociation” EFFECT: Once the corporate veil has been pierced, courts
(occurs when a partner ceases his association with carrying on generally hold all of the shareholders liable. However, some
the partnership business) of a partner does not automatically courts do not extend liability to passive investors.
trigger dissolution unless: SHAREHOLDER RIGHTS
1. The partnership is an at-will partnership; OR MEETINGS: A corporation must hold an annual meeting of
2. There is an occurrence of an event that the partners shareholders at a time that is fixed in accordance with the
specified in the partnership agreement that would bylaws. Special meetings can be held in certain situations.
cause dissolution (e.g., term partnerships).
Notice. Generally, shareholders who are entitled to vote
TERM PARTNERSHIPS: Under RUPA, a term partnership may must be provided with sufficient notice of all annual and
be dissolved before its term expires if: special meetings.
1. At least half of the partner’s express their will to
Quorum. A quorum must be present in order for the
wind up the business within 90 days after a partner’s
shareholders to take action at a meeting. Unless
disassociation by death, bankruptcy, becoming
otherwise set forth in the articles, a quorum exists when
incapacitated, or wrongful disassociation; OR
at least a majority of the shares entitled to vote are
2. All of the partners agree to amend the partnership
present.
agreement by expressly agreeing for dissolution.
VOTING RIGHTS: The articles may provide that holders of
certain types of shares cannot vote unless specific conditions

are satisfied. Unless otherwise provided by law or the articles, 2. With the care an ordinarily prudent person in a like
all shareholders’ votes are counted equally, regardless of position would exercise under similar circumstances;
class. AND
ELECTING DIRECTORS: Shareholders elect directors either 3. In a manner the director/officer reasonably believes
directly (each share equals one vote) or cumulatively (voters to be in the best interests of the corporation.
can put multiple votes on one or more candidates). Generally, If a director or officer breaches the duty of care, he may be
cumulative voting is more favorable to minority shareholders. held personally liable for damages.
VOTE BY PROXY: A vote by proxy allows a shareholder to vote CONFLICTING INTEREST TRANSACTIONS: Directors and
without physically attending the meeting by authorizing officers have a duty to avoid implicating their personal
another to vote her shares on her behalf. A valid proxy must conflicting interests in making business decisions for the
exist in the form of a verifiable electronic transmission or a corporation. However, a director/officer that enters into a
signed written appointment form. conflicting interest transaction may be protected if:
1. Disinterested shareholders approve the transaction;
Freely Revocable. A proxy is freely revocable unless the
2. The non-interested members of the board authorize
recipient of the proxy has an economic interest in the
the transaction; OR
shares.
3. The transaction, at the time of commitment, is
BOOKS AND RECORDS: A shareholder possesses the right to established to have been fair to the corporation.
inspect corporate books and records during normal business
CORPORATE OPPORTUNITIES: The corporate opportunity
hours so long as the purpose for the inspection is proper.
doctrine prohibits directors and officers from usurping
However, a shareholder may inspect the articles and bylaws
business opportunities that rightfully belong to the
without providing a proper purpose.
corporation for their own benefit.
SALE OF CORPORATE ASSETS: Shareholder approval is
MERGERS AND CONSOLIDATIONS
required for the corporation to sell, lease, exchange, or
otherwise dispose of all, or substantially all, of its property if MERGERS AND CONSOLIDATIONS: A merger occurs when
the disposal is not in the corporation’s usual and regular one of two existing corporations is absorbed by the other
course of business. However, if the disposal of assets is in the corporation. A consolidation occurs when two existing
corporation’s usual and regular course of business, corporations combine into one new corporation. A merger or
shareholder approval is not required (unless otherwise set consolidation both require:
forth in the articles of incorporation). 1. The recommendation of an absolute majority of the
board of directors; AND
DUTIES OF THE DIRECTORS AND OFFICERS
2. The agreement of each corporation by an absolute
AUTHORITY OF DIRECTORS: Subject to any limitation majority of shareholders.
imposed by law or the articles, the board of directors has full DISSENTERS’ RIGHTS: After a merger or consolidation occurs,
control over the affairs of the corporation. dissenting shareholders opposed to the action may either:
AUTHORITY OF OFFICERS: The board of directors generally 1. Challenge the action; OR
delegates day-to-day management of the corporation’s 2. Receive payment determined at fair market value of
business to officers elected by the board. The board may their shares immediately before the merger or
remove officers at any time with or without cause. consolidation took effect.
DUTY OF CARE: Directors and officers owe the corporation a SHAREHOLDER LITIGATION
fiduciary duty of care. This duty includes: DERIVATIVE CLAIMS: A derivative claim is a lawsuit brought
1. The duty to take reasonable steps to monitor the by a shareholder on behalf of the corporation. The
corporation’s management; shareholder is suing to enforce the corporation’s rights when
2. The duty to be satisfied that proposals are in the the corporation has a valid cause of action, but has failed to
corporation’s best interests; pursue it. If successful, the proceeds go to the corporation.
3. The duty to disclose material information to the However, if the award to the corporation benefits the
board; AND defendants, the court may order that damages be paid
4. The duty to make reasonably informed decisions. directly to the shareholder who brought the action.
BUSINESS JUDGMENT RULE (BJR): In suits alleging that a Demand. Generally, a shareholder must make a written
director or officer violated his duty of care owed to the demand on the board before commencing a derivative
corporation, courts will apply the BJR. Under this rule, a court action. After submitting the demand, the shareholder
will not second guess the decisions of a director or officer so must wait 90 days to file the derivative action, unless the
long as the decisions are made: board rejects the demand during the 90-day period.
1. In good faith; However, under the common law, and in some
jurisdictions today, the plaintiff shareholder does not

have to make a demand on the board if it would be futile
to do so (e.g., the board is interested in the transaction
being challenged).
DIRECT CLAIMS: A direct claim is a lawsuit brought by a
shareholder to enforce his own rights. The shareholder must
prove actual injury that is not solely the result of an injury
suffered by the corporation. If a direct claim is successful, the
proceeds go to the shareholder.

CIVIL PROCEDURE
SUBJECT MATTER JURISDICTION (SMJ) GENERAL JURISDICTION: General jurisdiction exists when the
FEDERAL QUESTION JURISDICTION: A federal court has defendant’s contact with the forum state is so systematic and
federal question jurisdiction if the well-pleaded complaint continuous that he is essentially at home in the forum state.
alleges a claim that arises under federal law. SPECIFIC JURISDICTION: Specific jurisdiction is present if:
DIVERSITY JURISDICTION: A federal court has diversity 1. The defendant purposefully availed himself of the
jurisdiction if: benefits of the forum state; AND
1. Complete diversity is present; AND 2. The defendant knew or reasonably should have
2. The amount in controversy exceeds $75,000. anticipated that his activity in the forum state made
it foreseeable that he may be hailed into court there.
CITIZENSHIP: Determining citizenship for diversity purposes
varies depending on the types of parties involved. SERVICE OF PROCESS AND NOTICE
Individuals. An individual’s citizenship is determined by SERVICE: The plaintiff is responsible for having a copy of the
the individual’s state or country of domicile. summons and complaint served on the defendant within 90
Corporations. Corporations hold dual citizenship: days after the complaint is filed.
a. The state or country of incorporation; AND Domestic Individuals. An individual within the U.S. may
b. The state or country of its principal place of be served by:
business. a. Delivering a copy to the individual personally;
Unincorporated Associations. Unincorporated b. Leaving a copy at the individual’s dwelling with
associations and partnerships are considered a citizen of someone of suitable age who resides there; OR
every state of which its members are citizens. c. Delivering a copy to an authorized agent.
SUPPLEMENTAL JURISDICTION: Supplemental jurisdiction Foreign Individuals. Unless prohibited by foreign law, an
allows a federal court with valid SMJ over a case to hear individual in a foreign country may be served by:
additional claims over which the court would not a. Using certified mail requiring a signature; OR
independently have jurisdiction if all the claims constitute the b. Delivering a copy to the individual personally.
same case or controversy. Business Entities. A corporation, partnership, or
association may be served by delivering a copy of the
Same Case or Controversy. Claims constitute the same
summons and complaint to an officer, a managing or
case or controversy if they arise out a “common nucleus
general agent, or any other agent authorized by law.
of operative fact” (i.e., the claims arise out of the same
transaction or occurrence). VENUE AND TRANSFER
REMOVAL: Removal allows the defendant to move a case VENUE: Venue is proper in a judicial district where:
from state court to federal court if the case could have been 1. Any defendant resides if all the defendants reside in
brought originally in federal court. In diversity actions, there the same state;
is an additional requirement – the defendant may remove if: 2. A substantial part of the events giving rise to the
1. Complete diversity is present; claim occurred or a substantial part of property that
2. The amount in controversy exceeds $75,000; AND is the subject of the action is located; OR
3. The action is brought in a state of which no 3. If (1) or (2) cannot be satisfied, a judicial district in
defendant is a citizen. which any defendant is subject to PJ.
PERSONAL JURISDICTION (PJ) RESIDENCE: Determining residence for venue purposes varies
depending on the types of parties involved.
TRADITIONAL BASES: If any of the following 4 traditional
bases are satisfied, the court will have PJ over the defendant: Individuals. An individual is deemed to reside in the
1. Domicile (D is domiciled in the forum state) judicial district where he is domiciled.
2. Physical Presence (D is served in the forum state) Business Entities. A business entity is deemed to reside
3. Consent (D consents to PJ) in any judicial district where the entity is subject to PJ.
4. Waiver (D waives his objections to PJ) Foreign Defendants. A defendant who is not a resident
STATE LONG-ARM: If none of the traditional bases are of the U.S. may be sued in any judicial district.
satisfied, the court will still have PJ over the defendant if TRANSFER: If venue is proper, the court may nonetheless
minimum contacts exist between the defendant and the transfer the case for convenience to any court where the case
forum state. Sufficient minimum contacts exist when: could have been originally filed. In diversity cases, the
1. General or specific jurisdiction is present; AND transferee court must apply the law that would have been
2. The exercise of such jurisdiction does not offend applied in the district court that transferred the case.
traditional notions of fair play and substantial justice. If venue is improper, the court must:
© 2020 Studicata | www.studicata.com Civil Procedure 1

1. Dismiss the case; OR COMPULSORY JOINDER
2. Transfer the case to a venue in which the case could COMPULSORY JOINDER: A plaintiff must join an absent party
have been originally filed, and apply the choice-of- or face dismissal of the lawsuit if:
law rules of the state in which it is located (in 1. Complete relief cannot be accorded among the other
diversity cases). parties to the action without the absentee party; OR
In all federal question cases, the transferee court must apply 2. The absentee has such an interest in the action that
the federal law as interpreted by its own federal court of a decision in his absence will impede his ability to
appeals (regardless of whether original venue was proper). protect the interest or leave any of the other parties
PRELIMINARY INJUNCTIONS/TROs subject to a substantial risk of incurring
multiple/inconsistent obligations; AND
PRELIMINARY INJUNCTION (PI): A PI preserves the status quo
3. The court has PJ over the absentee; AND
of the parties until a final judgment can be reached. A plaintiff
4. The absentee’s presence would not destroy subject
seeking a PI must establish that:
matter jurisdiction or venue.
1. She is likely to suffer irreparable harm if the PI is not
issued; DISCOVERY
2. She is likely to suffer greater harm than the SCOPE: Generally, discovery is permitted with regard to any
defendant will if the PI is not issued; non-privileged matter that is:
3. She is likely to succeed on the merits; AND 1. Relevant to any party’s claim or defense; AND
4. The PI is the best interest of the public. 2. Proportional to the needs of the case.
The non-moving party must be given notice and an LIMITS: The court must limit the extent of discovery if:
opportunity to oppose the PI at a hearing before the court. 1. The discovery sought is unreasonably cumulative or
TEMPORARY RESTRAINING ORDER (TRO): A TRO preserves can be obtained from some other source that is
the status quo of the parties for up to 14 days until there is an more convenient or less expensive; OR
opportunity to hold a full hearing on the application for a PI. A 2. The party seeking discovery had ample opportunity
plaintiff seeking a TRO must establish that: to obtain the information by discovery in the action.
1. She is likely to suffer irreparable harm if the TRO is ATTORNEY WORK-PRODUCT: Generally, the materials
not issued; prepared by an attorney or client in anticipation of litigation
2. She is likely to suffer greater harm than the are protected from discovery unless:
defendant will if the TRO is not issued; 1. The materials are otherwise unavailable;
3. She is likely to succeed on the merits; AND 2. There is a substantial need for the materials; AND
4. The TRO is the best interest of the public. 3. The materials cannot be obtained without undue
The court may issue a TRO without notice (ex parte) if: hardship.
1. Immediate and irreparable will result to the movant MOTIONS
before the non-moving party can be heard; AND RULE 12(b): A party may assert any or all of the following
2. The attorney certifies in writing any efforts made to defenses by motion to dismiss:
give notice and why it should not be required. 1. Lack of subject matter jurisdiction;
PLEADINGS 2. Lack of personal jurisdiction;
COMPLAINT: The complaint is the first pleading filed by the 3. Improper venue;
plaintiff – it commences the lawsuit. A complaint must state: 4. Insufficient process;
1. Grounds for SMJ; 5. Insufficient service of process;
2. A showing that the pleader is entitled to relief; AND 6. Failure to state a claim upon which relief can be
3. A demand for judgment for relief. granted; AND
7. Failure to join an indispensable party under
PRE-ANSWER MOTION: After the complaint is filed, the
compulsory joinder.
defendant may file a pre-answer motion to raise certain
defenses or respond with the answer. RULE 12(b)(6): Under a 12(b)(6) motion for failure to state a
claim upon which relief can be granted, a claim for relief can
ANSWER: The answer must state:
be dismissed if it either fails to assert a legal theory of
1. A specific denial or admission of each allegation in
recovery that is cognizable or fails to allege facts sufficient to
the complaint or a general denial of all allegations
support a cognizable claim. In making this determination
with specific admissions if necessary; AND
courts apply a 2-step analysis:
2. Any affirmative defenses that the respondent has (if
1. The court must identify and reject legal conclusions
excluded, such defenses are deemed waived).
unsupported by factual allegations; THEN
2. The court should assume that the well-pleaded
factual allegations are true and, drawing on the

court’s judicial experience and common sense, determine APPEALS AND REVIEW
whether the allegations plausibly give rise to the entitlement COLLATERAL ORDER DOCTRINE: The doctrine of collateral
of relief. order allows a party to appeal interlocutory rulings (i.e., non-
MOTION FOR SUMMARY JUDGMENT (MSJ): A MSJ must be final rulings) if the ruling decides a claim or issue:
filed at any time until 30 days after the close of discovery. A 1. That is separable from and collateral to the merits of
MSJ must be granted if, from the pleadings, affidavits, and the case;
discovery materials on file, when viewing the evidence in the 2. Involves a serious and unsettled legal question; AND
light most favorable to the nonmoving party, it appears that: 3. Would be effectively unreviewable if the court
1. No genuine dispute of material fact exists; AND waited until final judgment to hear the claim or
2. The moving party is entitled to judgment as a matter issue.
of law.
MOTION FOR JUDGMENT AS A MATTER OF LAW (JMOL): A
JMOL may be filed by either party after the close of the
nonmoving party’s evidence or at the close of all evidence.
The motion will be granted if, when viewing the evidence in
the light most favorable to the nonmoving party, the court
finds that a reasonable jury would not have a legally
sufficient basis to find for the nonmoving party.
VERDICTS AND JUDGMENTS
FINAL JUDGMENT RULE: The federal courts of appeals have
jurisdiction over appeals from final judgments of the
district courts. A final judgment is a decision by the court on
the merits that leaves nothing for the court to do but execute
the judgment.
RES JUDICATA: Res judicata provides that a final judgment on
the merits of an action precludes the parties from successive
litigation of an identical claim in a subsequent action. To bar a
claim under res judicata:
1. The original claim must have resulted in a valid final
judgment on the merits;
2. The original and later-filed causes of action must be
sufficiently identical (i.e., related to the same
transaction or occurrence); AND
3. The claimant and the defendant must be the same
(and in the same roles) in both the original and later-
filed action, or privity exists between the parties in
the original and later-filed action.
COLLATERAL ESTOPPEL: Collateral estoppel precludes the re-
litigation of issues of fact or law that have already been
necessarily determined by a judge or jury as part of an earlier
claim. To bar an issue under collateral estoppel:
1. The issue sought to be precluded must be the same
as that involved in the prior action (i.e., the facts
relevant to the particular issue and the applicable
law must be identical);
2. The issue must have been actually litigated in the
prior action;
3. The issue must have been determined by a valid final
judgment on the merits; AND
4. The determination of the issue must have been
essential to the prior judgment.

CONFLICT OF LAWS
CHOICE OF LAW APPROACHES
CHOICE OF LAW: In determining whether to apply the law of
the forum or the law of another jurisdiction with an interest
in the controversy, the court will use one of the following
approaches.
VESTED RIGHTS: Under the traditional vested rights
approach, the court applies the law of the jurisdiction where
the event that gave rise to the lawsuit occurred.
GOVERNMENTAL INTEREST: Under the modern
governmental interest approach, the court applies the law of
the jurisdiction that has a greater interest in having its law
applied. In making this determination, the court will examine:
1. The policies behind the respective laws in the forum
and the other jurisdiction; AND
2. Whether it is reasonable for the respective
jurisdictions to assert an interest in the application
of those policies under the circumstances.
MOST SIGNIFICANT RELATIONSHIP: Under the Second
Restatement, the court applies the law of the jurisdiction that
has the most significant relationship to the problem at issue.
In making this determination, the Second Restatement sets
forth the following factors for the court to consider:
1. Relevant policies of the forum and other interested
jurisdictions;
2. Relevant policies underlying the field of law at issue;
3. Uniformity of result; AND
4. Ease of application of the law to be applied.
FEDERAL-STATE CONFLICTS
ERIE DOCTRINE: Under the Erie Doctrine, a federal court
sitting in diversity jurisdiction must apply the law of the forum
state in which it sits (not its own federal law) regarding
substantive issues. However, federal courts are free to apply
their own rules to procedural issues. Choice of law issues are
considered substantive; therefore, a federal court sitting in
diversity must apply the forum state’s choice of law rules.
RECOGNITION OF OTHER STATES’ JUDGMENTS
FULL FAITH AND CREDIT: Courts must give full faith and credit
to the judicial proceedings of every U.S. state and territory,
unless there is a valid defense to recognition or enforcement.
A court is not required to enforce the judgment of another
court if:
1. The other court lacked valid jurisdiction;
2. The other court’s judgment was procured by fraud;
3. The other court’s judgment was not entered on the
merits; OR
4. The other court’s judgment was not final (judgments
on appeal).
© 2020 Studicata | www.studicata.com Conflict of Laws 1

CONSTITUTIONAL LAW
11th AMENDMENT an action on behalf of its members (even if the organization
STATE SOVEREIGN IMMUNITY: The 11th Amendment is a itself has not suffered an injury) if:
jurisdictional bar that prohibits: 1. Its members would have standing to sue in their own
1. The citizens of one state or a foreign country from right; AND
suing another state in federal court for money 2. The interests at stake are germane to the
damages or equitable relief; AND organization’s purpose.
2. Suits in federal court against state officials for RIPENESS: For a case to be ripe for litigation, the plaintiff
violating state law. must have experienced a real injury or imminent threat
11 AMENDMENT EXCEPTIONS: The following are exceptions
th thereof.
to the application of the 11th Amendment: MOOTNESS: A case has become moot if further legal
1. Consent. A state may consent to a suit by waiving its proceedings would have no effect (i.e., there is no longer a
11th Amendment protection. controversy). A live controversy must exist at each stage of
2. Injunctive Relief. When a state official, rather than review (not merely when the complaint is filed). There are
the state itself, is named as the defendant in an three exceptions:
action brought in federal court, the state official may 1. Capable of Repetition, Yet Evading Review. A case
be enjoined from enforcing a state law that violates will not be dismissed as moot if the controversy is a
federal law or may be compelled to act in accord type that may often recur, but that will not last long
with federal law despite state law to the contrary. enough to work its way through the judicial system.
3. Individual Damages. An action for damages against 2. Voluntary Cessation. A case will not be dismissed as
a state official is not prohibited so long as the official moot if the defendant voluntarily ceases the
himself (not the state) will have to pay. wrongful action once litigation has commenced. The
4. Congressional Authorization. Congress may court must be assured that there is no reasonable
abrogate state immunity from liability it is clearly expectation that the wrong will be repeated.
and expressly acting to enforce rights created by the 3. Class Actions. An entire class action will not be
14th Amendment. dismissed as moot solely because the named party’s
JUSTICIABILITY claim in the class is resolved and becomes moot.
STANDING: A federal court cannot decide a case unless the POWERS OF CONGRESS
plaintiff has standing (i.e., a concrete stake in the outcome of NECESSARY AND PROPER “POWER”: Congress can exercise
the action). To have standing, a plaintiff bears the burden of those powers enumerated in the Constitution plus all auxiliary
establishing three elements: powers necessary and proper to carry out all powers vested in
1. Injury in Fact. The injury must be concrete and the federal government. The Necessary and Proper Clause
particularized. While a threat of future injury can standing alone cannot support federal law – it must work in
suffice, it cannot be merely hypothetical or conjunction with another federal power.
conjectural, it must be actual and imminent. TAXING POWER: Congress has the power to tax, and most
2. Causation. The injury must be fairly traceable to the taxes will be upheld if:
challenged action (i.e., the defendant’s conduct 1. They bear some reasonable relationship to revenue
caused the injury). production; OR
3. Redressability. It must be likely that a favorable 2. Congress has the power to regulate the activity
court decision will redress an injury suffered by the taxed.
plaintiff.
SPENDING POWER: Congress may spend to “provide for the
THIRD PARTY STANDING: Generally, one cannot assert the common defense and general welfare.” Spending may be for
constitutional rights of others to obtain standing, but a any public purpose (very broad).
claimant with standing in her own right may also assert the
COMMERCE POWER: Congress has the power to regulate all
rights of a third party if:
foreign and interstate commerce. To be within Congress’s
1. The 3rd party would experience difficulty or is unable
power under the Commerce Clause, a federal law regulating
to assert their own rights;
interstate commerce must either regulate the:
2. There is a special relationship between the plaintiff
1. Channels of interstate commerce;
and the 3rd party; OR
2. Instrumentalities of interstate commerce and
3. The plaintiff’s injury adversely affects the plaintiff’s
persons and things in interstate commerce; OR
relationship with the third party.
3. Activities that have a substantial effect on interstate
ORGANIZATIONAL STANDING: An organization may bring commerce.
© 2020 Studicata | www.studicata.com Constitutional Law 1

AMENDMENT ENFORCEMENT POWER: Each of the 13th, 14th, 1. Discriminate against out-of-state commerce;
and 15th Amendments (ban on slavery, equal protection and 2. Unduly burden interstate commerce; OR
due process, and voting rights) contain a provision that 3. Regulate wholly out-of-state activity.
authorizes Congress to pass “appropriate legislation” to Legislation that violates any of the above requirements is
enforce the civil rights guaranteed by those Amendments. generally deemed unconstitutional unless:
POWERS OF THE PRESIDENT 1. The state is acting as a market participant rather
DOMESTIC POWERS: The President has the power to: than a market regulator;
1. Reprieve or pardon federal offenses, except in cases 2. The legislation favors state or local government
of impeachment; entities that are performing a traditional
2. Appoint all officers of the United States (e.g., government function; OR
ambassadors, Supreme Court Justices, etc.) with the 3. Congress explicitly permits the legislation.
advice and consent of the Senate; SUPREMACY CLAUSE: The Supremacy Clause provides that
3. Remove any executive appointee without cause and federal law is the “supreme law of the land.” Any state law
without Senate approval, except in cases of federal that directly or indirectly conflicts with a federal law is void
judges (federal judges may only be removed by under the Supremacy Clause.
impeachment); AND STATE ACTION
4. Veto any bill presented by Congress.
STATE ACTION REQUIREMENT: Generally, the Constitution
SCOPE OF PRESIDENTIAL POWER: In order to determine protects against wrongful conduct by the government, not
whether the President’s actions are within the scope of his private parties (there is an exception for the prohibition of
constitutional power, the court must consider the degree of slavery, which applies to the government and private parties).
congressional authorization the President is acting with: Thus, state action is required to trigger an individual’s
1. When the president is acting with the express or constitutional protections. State action may exist in cases of
implied authorization of Congress, presidential private parties when:
authority is at its highest, and the action is strongly 1. A private person carries on activities that are
presumed to be valid. traditionally performed exclusively by the state; OR
2. When Congress has not spoken, presidential 2. There are sufficient mutual contacts between the
authority is diminished, and the action is invalid if it conduct of a private party and the government (this
interferes with the operations or power of another is a question of the degree of state involvement).
branch of government.
DUE PROCESS
3. When Congress has spoken to the contrary,
presidential authority is at its lowest, and the action PROCEDURAL DUE PROCESS: The Due Process Clause of the
is likely invalid. 14th and 5th Amendments guarantees that no person shall be
denied life, liberty, or property without due process of law.
FEDERAL AND STATE POWERS
Thus, a fair process (e.g., notice and hearing) is required for a
EXCLUSIVE FEDERAL POWERS: Some powers are exclusively government agency to take a person’s life, liberty, or
federal because the Constitution limits or prohibits the use of property. Only intentional (not negligent) deprivation of these
the power by state (e.g., treaty power, coinage of money). rights violates the Due Process Clause. The type and extent of
Other powers are exclusively federal because the nature of procedural due process that is required is determined by a
the power itself is such that it can be exercised only by the three-part balancing test that weighs:
federal government (e.g., declaration of war). 1. The importance of the individual’s interest that is
EXCLUSIVE STATE POWERS: The 10th Amendment provides being affected; AND
that all powers not assigned by the Constitution to the federal 2. The value of specific procedural safeguards to that
government are reserved to the states, or to the people. interest; AGAINST
FEDERAL REGULATION OF STATES: The federal government 3. The government interest in fiscal and administrative
has virtually unlimited power to regulate the states. efficiency.
Generally, Congress may regulate the states so long as it is SUBSTANTIVE DUE PROCESS: A governmental regulation that
exercising an enumerated power. While Congress cannot infringes upon a fundamental right is subject to the strict
command state legislatures to enact specific legislation, it scrutiny standard of review, while a governmental regulation
may encourage state action through the use of its taxing and that does not infringe upon a fundamental right is subject to
spending powers. the rational basis standard of review. Fundamental rights,
DORMANT COMMERCE CLAUSE: If Congress has not enacted triggering strict scrutiny, include:
legislation in a particular area of interstate commerce, then 1. The right to interstate travel;
the states are free to regulate, so long as the state or local 2. The right to vote; AND
action does not: 3. The right to privacy, including:

a. The right to marry; 5th AMENDMENT TAKINGS
b. The right of married persons to use TAKINGS CLAUSE: The power of the government to take
contraceptives; private property for public purposes is known as “eminent
c. The right of adults to engage in non- domain.” The Takings Clause of the 5th Amendment acts as a
commercial, consensual sex; check on this power. It provides that:
d. The right of parents to make decisions 1. Private property may be taken;
regarding the care, custody, and control of 2. For public use;
their children (including the right to 3. With just compensation (fair market value).
privately educate a child outside the public
REGULATORY TAKING: Generally, a governmental regulation
school system); AND
that adversely affects a person’s property interest is not a
e. The right of related person to live together
taking (does not require just compensation); however, it is
in a single household.
possible for a regulation to rise to level of a taking (requiring
STANDARDS OF REVIEW just compensation). In determining whether a regulation
STRICT SCRUTINY: The government must prove that the constitutes a taking, the Penn Central factors are considered:
regulation is the least restrictive means to achieve a 1. The economic impact of the regulation on the
compelling government interest (very difficult to prove). property owner;
INTERMEDIATE SCRUTINY: The government must prove that 2. The extent to which the regulation interferes with
the regulation is substantially related to an important the owner’s reasonable investment-backed
government interest. expectations regarding the use of the property; AND
3. The character of the regulation (including the degree
RATIONAL BASIS: The challenger must prove that the
to which it will benefit society, how the regulation
regulation is not rationally related to any legitimate
distributes the burdens and benefits among property
government interest (very difficult to prove).
owners, and whether the regulation violates any of
EQUAL PROTECTION the owner’s essential attributes of property
EQUAL PROTECTION CLASSIFICATIONS: The Equal Protection ownership, such as the right to exclude others from
Clause of the 14th Amendment prohibits the government from the property).
denying citizens equal protection of the laws. When the PER SE TAKINGS: A governmental regulation clearly results in
government makes laws that classify people into groups, the a taking when the regulation results in a:
constitutionality of the law will be evaluated according to the 1. Permanent physical occupation of the property; OR
type of classification made: 2. Permanent total loss of the property’s economic
1. If a suspect classification is involved, the strict value.
scrutiny standard applies. Classifications are suspect
FREE SPEECH GENERAL PRINCIPLES
if they are based on race, ethnicity, national origin,
or alienage (alienage is only suspect if the SCOPE OF SPEECH: The freedom to speak includes the
classification is made by state law). freedom not to speak. Thus, the government generally
2. If a quasi-suspect classification is involved, the cannot require people to salute the flag or display other
intermediate scrutiny standard applies. messages with which they disagree (e.g., a person need not
Classifications are quasi-suspect if they are based on display the state motto “live free or die” on a license plate).
gender or legitimacy (non-marital children). Speech includes symbolic acts undertaken to communicate an
3. For all other classifications (e.g., age, disability, and idea (e.g., wearing a black armband to protest war).
wealth classifications), the rational basis standard OVERBREADTH: If a regulation of speech or speech-related
applies. conduct punishes a substantial amount of protected speech in
GOVERNMENTAL INTENT: For strict or intermediate scrutiny relation to its plainly legitimate sweep, the regulation is
to be applied, there must be intent on the part of the facially invalid.
government to discriminate. A discriminatory effect or VAGUENESS: A statute or regulation is void for vagueness if it
disparate impact toward a group of people alone is not does not put the public on reasonable notice as to what is
enough to show governmental intent. Governmental intent prohibited.
may be shown by: CONTENT vs. CONDUCT SPEECH REGULATION
1. A law that is discriminatory on its face;
CONTENT-BASED REGULATIONS: Speech regulations are
2. A discriminatory application of a facially neutral law;
content-based if they prohibit communication of specific
OR
ideas. It is presumptively unconstitutional to place burdens on
3. A discriminatory motive behind a facially neutral law.
speech because of its content, except for certain categories of
unprotected speech (e.g., obscenity, defamation, etc.).

CONTENT-NEUTRAL REGULATIONS: Content-neutral speech 1. Imminent illegal conduct is likely; AND
regulations generally must: 2. The speaker intended to cause it.
1. Advance important interests unrelated to the FIGHTING WORDS: Speech can be limited if it constitutes
suppression of speech; AND fighting words. Fighting words are personally abusive words
2. Not burden substantially more speech than that are likely to incite immediate physical retaliation in an
necessary to further those interests. average person. The Supreme Court will not tolerate fighting
TIME, PLACE, AND MANNER RESTRICTIONS: The government words statutes that are designed to punish only certain
has power to regulate the conduct associated with speech, viewpoints (e.g., prohibiting only fighting words that insult on
although the breadth of this power depends on whether the the basis of race, religion, or gender).
forum involved is a public or nonpublic forum.
OBSCENITY: Obscene speech is not protected. Speech is
PUBLIC FORUMS: Public property that has historically been obscene if it describes or depicts sexual conduct that, taken
open to speech-related activity is called a public forum (e.g., as a whole, by the average person:
streets, sidewalks, and public parks). Public property that has 1. Appeals to the prurient interest in sex, using a
not historically been open to speech-related activities, but community standard;
which the government has made open for such activities on a 2. Is patently offensive; AND
permanent or limited basis, by practice or policy is called a 3. Lacks serious literary, artistic, political, or scientific
designated public forum (e.g., schoolrooms that are open for value, using a national reasonable person standard.
after-school use by social, civic, or recreation groups). The
COMMERCIAL SPEECH: Generally, commercial speech (e.g.,
government may regulate speech in public forums and
advertising) is afforded 1st Amendment protection if it is
designated public forums with reasonable time, place, and
truthful. However, commercial speech that proposes unlawful
manner regulations that:
activity or that is false, misleading, or fraudulent may be
1. Are content-neutral (i.e., are subject matter and
restricted as unprotected speech. Any other regulation of
viewpoint neutral)
commercial speech will be upheld only if it:
2. Are narrowly tailored to serve an important
1. Serves a substantial government interest;
government interest; AND
2. Directly advances that interest; AND
3. Leave open alternative channels of communication.
3. Is narrowly tailored to serve that interest.
NONPUBLIC FORUMS: Government property that has not
RELIGIOUS FREEDOMS
historically been linked with speech and assembly but has
been opened for specific speech activity is called a limited FREE EXERCISE CLAUSE: The Free Exercise Clause prohibits
public forum (e.g., school gym opened to host a debate on a government from punishing someone on the basis of her
particular community issue). Government property that has religious beliefs or interfering with her exercise of religion.
not historically been linked with speech and assembly and has However, the government can deny benefits or impose a
not been opened for specific speech activity is called a restriction on someone based on her religious beliefs so long
nonpublic forum (e.g., military bases, schools while classes as there is a compelling interest that satisfies strict scrutiny
are in session, government workplaces, etc.). The government (the Supreme Court has never found an interest so compelling
may regulate speech in limited public forums and nonpublic that it justifies such action).
forums if the regulations are: ESTABLISHMENT CLAUSE: The Establishment Clause, along
1. Viewpoint neutral; AND with the Free Exercise Clause, compels the government
2. Reasonably related to a legitimate government to pursue a course of neutrality toward religion. Government
purpose action challenged under the Establishment Clause will be
UNPROTECTED SPEECH found invalid, unless the action:
1. Has a secular purpose;
UNPROTECTED SPEECH: To be valid, restrictions on the
2. Has a primary effect that neither advances nor
content of speech must be necessary to achieve a compelling
inhibits religion; and
government interest. The government has a compelling
3. Does not produce excessive government
interest in the following categories of speech, which are
entanglement with religion.
deemed “unprotected speech” under the 1st Amendment:
1. Inciting imminent lawless action;
2. Fighting words;
3. Obscenity;
4. Defamatory speech; AND
5. Some commercial speech
INCITING IMMINENT LAWLESS ACTION: Speech can be
restricted if it creates a clear and present danger of imminent
lawless action. It must be shown that that:

CONTRACTS
GENERAL PRINCIPALS communicated to the other side – silence generally does not
COMMON LAW vs. UCC: The gateway issue in all contracts manifest willingness unless there is a past history of silence
and sales essay questions will be to determine whether the serving as acceptance).
common law or Article 2 of the UCC governs: MASTER OF THE OFFER: The offeror is the master of the offer,
1. The common law governs if a contract deals with which means that the offeree must accept the offer according
services or real estate. to the rules of the offer.
2. The UCC governs if a contract deals with goods.
MAILBOX RULE: An ACCEPTANCE that is sent by mail, email,
MIXED CONTRACTS: For mixed contracts (contracts that have or fax is valid at the moment of dispatch UNLESS:
elements of both services and goods), the predominant 1. The offeree-sender uses the wrong address or has
purpose of the contract determines whether the common law improper postage;
or UCC governs. If the predominant purpose of the contract 2. The offeror expressly stipulates otherwise;
involves the purchase or sale of goods, the UCC applies. If the 3. An option contract is involved;
predominant purpose of the contract involves services or real 4. The offeree-sender sends a termination letter before
estate, the common law applies. the acceptance letter; OR
FORMATION REQUIREMENTS: A traditional, enforceable 5. The offeror detrimentally relies on a termination
contract is formed when there is: before he receives the acceptance letter.
1. Mutual assent (offer + acceptance) COUNTEROFFER vs. ACCEPTANCE
2. Consideration; AND
COUNTEROFFERS: A counteroffer operates as a both a
3. No defenses to formation that would invalidate the
rejection that terminates the original offer and as a new offer.
otherwise valid contract.
MIRROR IMAGE RULE: Under the common law, the terms in
OFFER the acceptance must match the terms of the offer exactly –
THE OFFER: To form an offer, the offeror must: otherwise it is not an acceptance, it is a counteroffer (i.e., the
1. Manifest a willingness to enter into an agreement; terms of the offer and acceptance must mirror each other).
AND UCC § 2-207 (BATTLE OF THE FORMS): Under the UCC, the
2. Create a power of acceptance in the offeree. acceptance does not have to mirror the offer (i.e., the
TERMS REQUIRED IN THE OFFER: Under the common law, all acceptance can include different or additional terms from
essential terms must be specified in the offer (parties, those in the offer). UCC § 2-207(1) determines whether the
subject, quantity, and price). Under the UCC, price is not purported acceptance (containing new terms) will operate as
required in the offer. Generally, the UCC only requires three an acceptance or as a counteroffer. It states:
terms be specified in the offer (parties, subject, and quantity). 1. A definite and seasonable expression of acceptance
ADVERTISEMENTS: An advertisement is usually considered an or written confirmation;
invitation to deal rather than an offer, because an ad usually 2. Which is sent within a reasonable amount of time;
fails to confer a power of acceptance to the other side. 3. Operates as an acceptance even though it states
However, advertisements that are very specific and leave terms additional to or different from those offered
nothing open to negotiation may constitute offers. or agreed upon;
TERMINATING THE OFFER: An offer is terminated if any of the 4. Unless acceptance is expressly made conditional
following occur before acceptance: upon assent to the additional or different terms.
1. The offeror revokes the offer by express If the purported acceptance is a valid acceptance under
communication to the offeree; UCC § 2-207(1), the next issue is whether the additional or
2. The offeree learns that the offeror has taken an different terms in the acceptance will govern the contract
action that is absolutely inconsistent with a or whether UCC gap fillers will be implemented. Under
continuing ability to contract; UCC § 2-207(2), the ADDITIONAL terms will govern the
3. The offeree expressly rejects the offer; contract if BOTH parties are merchants UNLESS:
4. The offeree expressly makes a counteroffer; 1. The initial offer expressly limited acceptance to its
5. The offeror dies/becomes incapacitated; terms;
6. A reasonable amount of time passes; OR 2. The additional terms materially alter the deal; OR
7. The subject of the offer becomes illegal/destroyed. 3. The offeror objects to the additional terms within a
ACCEPTANCE reasonable amount of time.
ACCEPTANCE: An acceptance is a manifestation of willingness Under the knockout rule, different terms (conflicting
to enter into the agreement by the offeree (usually must be terms) in the original offer and acceptance knock each
© 2020 Studicata | www.studicata.com Contracts 1

other out creating a gap in the contract. UCC gap fillers are 4. The impacted party did NOT assume the risk of
then used to plug this gap (regardless of whether the mistake.
parties are merchants). The knockout rule does not apply UNILATERAL MISTAKE: A unilateral mistake is a mistake made
to additional terms (nonconflicting terms) added by the by one party that is unknown to the other party. The
offeree. UCC § 2-207(2) will determine whether the adversely affected party may rescind the deal if the above 4
additional terms control or whether UCC gap fillers must elements are met plus the mistake would make the contract
be implemented. unconscionable or the other side knew of, had reason to
CONSIDERATION know of, or caused the mistake.
CONSIDERATION: to form a traditional, enforceable contract, MISREPRESENTATION: A misrepresentation is a statement at
the agreement must be supported by consideration. the time of contracting that is not true. It can be intentional
Consideration involves a transfer of legal value in a bargained- (fraudulent) or accidental. To assert this defense, the party
for exchange. Consideration is present if: must show:
1. The promisee incurs a legal detriment or the 1. A misrepresentation of a present fact (not opinion);
promisor receives a legal benefit; AND 2. That is material or fraudulent (knowing/reckless);
2. The promise induces the detriment and the AND
detriment induces the promise. 3. That is made under circumstances in which it is
justifiable to rely on the representation.
CONTRACT MODIFICATION: Under the common law, contract
modifications must be supported by consideration. The DURESS: Duress is an improper threat that deprives a party
common law follows the preexisting duty rule, which means from making a meaningful choice to contract. Contracts
that a promise to do something that you are already legally induced by duress are generally voidable.
obligated to do is not consideration. Under the UCC, there is UNDUE INFLUENCE: Undue influence arises when a party’s
no consideration requirement. A contract modification is assent is induced due to his susceptibility to pressure and the
valid if it is made in good faith. other side’s excessive use of pressure (usually voidable).
PROMISSORY ESTOPPEL: Promises that lack consideration ILLEGALITY: If the consideration or performance of a contract
may still be enforced if: is illegal or contrary to public policy, the contract is void and
1. The promisor should reasonably expect the promise will not be enforced. However, a legal contract entered in
to induce action or forbearance from the promisee; furtherance of an illegal purpose may still be enforced.
2. The promise does induce such action or forbearance UNCONSCIONABILITY: If a contract is so unfair or oppressive
to the promisee’s detriment; AND to one party such that it shocks the conscience of the court, a
3. Injustice can be avoided only by enforcement of the court may find it unconscionable and refuse to enforce it.
promise. Some courts require both procedural unconscionability
DEFENSES TO CONTRACT FORMATION (defects in the bargaining process) and substantive
unconscionability (terms of the deal are grossly one-sided) to
INCAPACITY: A party must have capacity to enter into a
refuse to enforce the contract.
contract. Minors (under 18) generally lack capacity per se.
Intoxicated persons receive protection only if the other side STATUTE OF FRAUDS
had reason to know of their intoxication. If a party to a TRIGGERING THE STATUTE OF FRAUDS: The following
contract lacks capacity, the contract is voidable (the contracts are not valid unless they satisfy the statue of frauds:
incapacitated party can disaffirm the contract). However, if 1. A contract made in consideration of marriage;
the contract involves the purchase of necessaries, the party 2. A contract promising to guarantee the debt of
lacking capacity must still pay fair market value for the another;
necessaries. A party lacking capacity can ratify the deal by 3. A contract that by its terms cannot be performed
keeping the benefits of the contract after capacity is within one year from its making;
obtained. 4. A contract for the purchase/sale of goods for $500 or
MUTUAL MISTAKE: A mutual mistake occurs when both more; AND
parties are mistaken as to a basic assumption on which the 5. A contract to transfer, receive, or create an interest
agreement is made. The adversely affected party may rescind in real estate.
the deal if: SATISFYING THE STATUTE OF FRAUDS: The statute of frauds
1. There is a mistake of fact, existing at the time that can be satisfied with a signed writing or by performance.
the deal is made; Satisfaction by Writing. A writing will satisfy the statute
2. The mistake relates to a basic assumption of the of frauds if the writing:
contract; a. Is signed by the party to be charged;
3. The mistake has a material impact on the deal; AND b. Shows that a contract was formed; AND

c. Contains all the requisite terms of the deal. 3. Condition Precedents. Extrinsic evidence may be
Services Contracts. Full performance of a services offered if a party asserts that there was an oral
contract by either side satisfies the statute of frauds. agreement that the written contract would not
Real Estate Contracts. Part performance of a real estate become effective until a condition occurred.
contract can satisfy the statute of frauds if any two of the 4. Ambiguity and Interpretation. Extrinsic evidence
following three are met: may be offered for the purpose of interpreting or
a. Buyer takes possession of the property; clarifying an ambiguity in the agreement.
b. Buyer makes payment in full or part; AND/OR WARRANTIES
c. Buyer makes substantial improvements to the
EXPRESS WARRANTIES: Under the UCC, an express warranty
land.
is created when the seller makes any affirmation of fact or
Goods Contracts. Part performance on a goods contract
promise, description, or uses a sample or model as part of the
satisfies the statute of frauds, but only for the quantity
basis of the bargain with the buyer. Disclaimers that grossly
received and accepted.
conflict with express warranties are unenforceable.
Custom-Made Goods. The statute of frauds is satisfied
IMPLIED WARRANTY OF MERCHANTABILITY: Under the UCC,
when a seller makes a "substantial beginning" toward
all merchants make an implied warranty (unless disclaimed)
manufacture of custom goods that are to be specially
that the goods being sold are fit for their ordinary commercial
made for the buyer and are not suitable for sale to
purposes. A merchant can disclaim the implied warranty of
others in the ordinary course of the seller's business
merchantability if the language used to disclaim is
under circumstances that reasonably indicate that the
conspicuous. Language of “as is” or “with all faults” or
goods are for the buyer.
language that puts the buyer on notice will be sufficient for
PAROL EVIDENCE RULE disclaiming this warranty. The disclaimer may be made orally
PAROL EVIDENCE RULE (PER): When the parties to a contract so long as the term “merchantability” is used. If the buyer,
express their agreement in a writing with the intent that it before entering into the contract, has examined the goods or
embody the final expression of their bargain, the writing is an a sample as fully as the buyer desires, or has refused to
integration. If the writing is not an integration (e.g., non-final examine the goods, then there is no implied warranty of
expressions such as tentative drafts), the PER does not apply. merchantability with respect to defects that an examination
Otherwise, an integration may be complete or partial: ought to have revealed to the buyer.
Complete Integration. If the writing completely IMPLIED WARRANTY OF FITNESS: A warranty that the goods
expresses all of the terms of the parties’ agreement, then are fit for a particular purpose is implied whenever the seller
it is a complete integration. All other expressions or has reason to know that the buyer has a particular use for the
statements, written or oral, made prior to the writing, as goods, and the buyer is relying upon the seller’s skill to select
well as any oral expressions made contemporaneously the goods. The seller need not be a merchant for this
with the writing, are inadmissible. warranty to apply. This warranty can be disclaimed by general
a. Merger Clause. A merger clause recites that language (“as is”), but it must be conspicuous and in writing.
the agreement is the complete agreement PERFORMANCE
between the parties. This is strong evidence SUBSTANTIAL PERFORMANCE: Under the common law,
that the writing is a complete integration. substantial performance is required, which means that
Partial Integration. If the writing sets forth the parties’ performance will be satisfied so long as there is not a material
agreement about some terms, but not all the terms, then breach of the contract.
it is a partial integration. Other expressions or PERFECT TENDER: Under the UCC, perfect tender is required,
statements, written or oral, made prior to the writing, as which means that a seller must deliver perfectly conforming
well as any oral expressions made contemporaneously goods in accordance with the terms of the contract. The
with the writing, are admissible to supplement the smallest nonconformity is a breach that allows the buyer to
writing so long as the evidence does not contradict the reject all or a portion of the goods. However, installment
terms of the writing. contracts do not have to satisfy perfect tender – the buyer
EXCEPTIONS TO THE PER: The PER does not apply if any of can reject a specific installment delivery when there is a
the following exceptions exist: substantial impairment in the installment that cannot be
1. Defenses. Extrinsic evidence may be offered to cured. If the seller fails to tender perfect goods, the buyer
establish a defense to the formation or enforcement must give the seller a chance to cure the nonconformity if:
of a contract. 1. The time for performance under the contract has not
2. Separate Deals. Extrinsic evidence may be offered if yet expired; OR
it represents a distinct and separate contract.

2. The seller has reasonable grounds to believe that the that could have been avoided had the plaintiff taken
buyer would accept a replacement for the reasonable steps to mitigate his losses.
nonconformity. THIRD-PARTY RIGHTS
MONEY DAMAGES THIRD-PARTY BENEFICIARY CONTRACTS: An intended third-
EXPECTATION DAMAGES: The goal of expectation damages is party beneficiary is not a party to the contract, but has rights
to put the non-breaching party in the same economic position under the contract because the two contracting parties are
that it would be in if the contract had been performed as aware that their respective performances are intended to
promised. Expectation damages are measured by comparing benefit the identified third-party. An intended beneficiary has
the value of the performance without the breach to the value the right to sue for breach of contract. An incidental third-
of the performance with the breach. party beneficiary is not a party to the contract, but just so
RELIANCE DAMAGES: The goal of reliance damages is to put happens to benefit from the contract. An incidental
the non-breaching party in the same economic position that it beneficiary has no legal rights because the purpose of the
would be in if the contract had never been created. Reliance contract was not intended to benefit them. An incidental
damages restore the losses that the plaintiff incurred that beneficiary does not have the right to sue for breach.
would have never taken place but for the breached contract. ASSIGNMENT: Generally, a party can assign rights and
RESTITUTION: The goal of restitution is to prevent unjust benefits, in whole or in part, under a contract to a third party
enrichment. Restitution gives the plaintiff an amount equal to unless the contract explicitly prohibits or invalidates
the economic benefit that the plaintiff has conferred on the assignments. If the contract prohibits assignments, then the
defendant. assignor has breached the deal when he makes the
assignment and is liable for damages; however, the
EQUITABLE REMEDIES
assignment is still valid and enforceable by the assignee. If the
SPECIFIC PERFORMANCE: Specific performance is awarded contract invalidates assignments, then the assignment is void
only when monetary damages are considered inadequate to and the assignee cannot enforce the assignment or recover.
compensate the injured party. Specific performance is
presumptively available for real estate transactions, and is An assignee has the right to sue the obligor for non-
presumptively not available for contracts of personal service. performance. However, any defense to enforcement that
could be used against the assignor may also be used against
RECISSION: Rescission is the cancelling of a contract so as to
the assignee. An assignee also has the right to sue the
restore the parties to the positions they had before the
assignor for wrongful revocation of assignment or breach of
contract was made. Parties may seek to rescind a contract for
an implied warranty.
a variety of reasons, such as mutual mistake, fraud,
misrepresentation, or even unilateral mistake if the other DELEGATION: A delegation of duties occurs when a party
party knew or should have known about the mistake. “outsources” her duties under a contract to a third party. This
Rescission can also occur by the mutual agreement. is generally acceptable provided that:
1. The contract does not prohibit delegation; AND
RIGHT OF RECLAMATION (REPLEVIN): Under the UCC, a seller
2. The other party does not have some special interest
may reclaim the goods she sent to a buyer if either of the
in having a specific individual perform.
following circumstances apply:
1. Insolvent Buyer. When an insolvent buyer receives Generally, a delegatee is not liable for breach unless she
goods on credit, and the seller learns that the buyer receives consideration from the delegating party (i.e., the
is insolvent, the seller may reclaim the goods if a delegating party is not excused and remains liable for non-
demand is made within 10 days after the buyer’s performance unless there is consideration).
receipt of the goods. However, the 10-day limitation
does not apply if the buyer misrepresented his
solvency to the seller in writing within three months
before delivery.
2. Bad Checks. If the buyer pays with a check that is
subsequently dishonored, then the seller may
reclaim the goods following a demand made within a
reasonable time.
MITIGATION OF DAMAGES
DUTY TO MITIGATE: The plaintiff has a duty to take
reasonable steps to mitigate his losses. If the plaintiff fails to
do so, the court will reduce the total damages by the amount

CRIMINAL LAW
GENERAL PRINCIPALS substantial and unjustifiable risk that a material
ESSENTIAL ELEMENTS OF A CRIME: Almost all crimes require element of a crime exists or will result from his
proof of the following four core elements: conduct. The risk must constitute a gross deviation
1. Actus Reus. The defendant must have either from the standard of conduct of a law-abiding
performed a voluntary physical act or failed to act person.
under circumstances imposing a legal duty to act. 4. Negligently. A defendant acts “negligently” when
2. Mens Rea. The defendant must have committed the the defendant fails to perceive a substantial and
offense with a culpable state of mind. However, a unjustifiable risk that a material element of a crime
defendant need not know that their conduct is illegal exists or will result from his conduct. The risk must
to be guilty of a crime. constitute a gross deviation from the standard of
3. Causation. There must be a casual connection conduct of a reasonable person in the same
between the defendant’s physical act or failure to situation.
act and the harmful result. HOMICIDE
4. Concurrence. The requisite mental state must be COMMON LAW MURDER: Murder is the unlawful killing of a
present at the same time the physical act human being with malice aforethought. Malice aforethought
constituting the crime occurs. exists if there are no facts reducing the killing to voluntary
MENTAL STATE REQUIREMENTS manslaughter or excusing it and it was committed with one of
SPECIFIC INTENT: Specific intent requires that the crime be the following states of mind:
committed with a specific intent or objective. The existence 1. Intent to kill;
of specific intent cannot be conclusively imputed from the 2. Intent to inflict great bodily injury;
mere doing of an act, but the manner in which the crime was 3. Reckless indifference to an unjustifiably high risk to
committed may provide evidence of specific intent. Specific human life (“depraved heart murder”); OR
intent crimes include: solicitation, attempt, conspiracy, 1st 4. Intent to commit a felony (felony murder rule).
degree murder, assault, larceny, robbery, burglary, false VOLUNTARY MANSLAUGHTER: Voluntary manslaughter is a
pretenses, and embezzlement. killing that would be murder but for the existence of
MALICE: The intent necessary for malice crimes require a adequate provocation. Provocation is adequate only if:
reckless disregard of an obvious or high risk that the 1. It was a provocation that would arouse sudden and
particular harmful result will occur. Malice crimes include intense passion in the mind of an ordinary person,
common law murder and arson. causing him to lose self-control; AND
2. There was not sufficient time between the
GENERAL INTENT: General intent is a “catch-all” category of
provocation and the killing for passions of a
intent. It requires that the defendant intend to commit an act
reasonable person to cool off.
that is prohibited by law (whether the defendant intended
the act’s result is irrelevant). General intent crimes include: INVOLUNTARY MANSLAUGHTER: Involuntary manslaughter is
battery, rape, manslaughter, kidnapping, and false an unintentional killing committed:
imprisonment. 1. With criminal negligence; OR
2. In the commission of a misdemeanor or in the
STRICT LIABILITY: Strict liability only requires that the
commission of a felony that is not statutorily treated
defendant voluntarily commit the actus reus (regardless of
as 1st or 2nd degree murder.
the defendant’s intent). Defenses that negate state of mind
are NOT available. Statutory rape is a strict liability crime. FIRST AND SECOND DEGREE MURDER: In some jurisdictions,
murder is divided into degrees by statute. Generally, a
MODEL PENAL CODE: The model penal code eliminates the
murder will be 2nd degree murder unless it falls under any of
common law distinctions between general and specific intent
the following statutory aggravating circumstances, which
and adopts the following four categories of intent:
would make it 1st degree murder:
1. Purposely. A defendant acts “purposely” when his
1. Premeditation. If the defendant made the decision
conscious objective is to engage in the conduct or to
to kill in a cool and dispassionate manner and
cause a certain result.
actually reflected on the idea of killing, even if only
2. Knowingly or Willfully. A defendant acts “knowingly
for a very brief period (e.g., a few seconds), it is 1st
or willingly” when the defendant is aware that his
degree murder.
conduct is of the nature required by the crime or
2. Felony Murder. In many states, a killing committed
that circumstances required by the crime exist.
during the commission of an enumerated felony is
3. Recklessly. A defendant acts “recklessly” when the
felony murder and called 1st degree murder. The
defendant acts with a conscious disregard of
most commonly listed felonies in such statutes are
© 2020 Studicata | www.studicata.com Criminal Law 1

burglary, arson, rape, robbery, and kidnapping 4. Of a material past or present fact (not opinion);
(BARRK); however, other felonies that are inherently 5. With intent to defraud.
dangerous to human life are often included as well. LARCENY BY TRICK: Larceny by trick consists of:
3. Heinous Murder. Some states make killings that are 1. Obtaining possession or custody;
performed in a certain way (e.g., torture, mutilation, 2. To the personal property of another;
etc.) 1st degree murder. 3. By an intentional false representation;
FELONY MURDER: Any death caused in the commission of, or 4. Of a material past or present fact (not opinion);
in an attempt to commit, a felony is murder. However there 5. With intent to defraud.
are several limitations on this rule: ROBBERY: Robbery consists of:
1. The defendant must have committed or attempted 1. A taking and carrying away;
to commit the underlying felony – a defense that 2. Of the personal property of another;
negates an element of an underlying offense will also 3. From the other’s person or presence;
be a defense to felony murder; 4. By force or threat of force;
2. The felony must be distinct from the killing itself 5. With intent to permanently deprive.
(e.g., a battery that causes a victim’s death does not
OFFENSES AGAINST THE HABITATION
qualify as an underlying felony because the battery is
not distinct from the killing itself); BURGLARY: common law burglary consists of:
3. The death must have been a foreseeable result of 1. A breaking;
the felony; AND 2. And entry;
4. The death must have been caused before the 3. Of the dwelling of another;
defendant’s “immediate flight” from when the 4. At nighttime;
felony ended (i.e., once the felon has reached a 5. With the intent to commit a felony in the structure
place of “temporary safety” – subsequent deaths are (at the time of entry).
not felony murder). ARSON: common law arson consists of:
OFFENSES AGAINST THE PERSON 1. The malicious;
2. Burning;
BATTERY: Battery is the:
3. Of the dwelling of another.
1. Unlawful (without legal excuse);
2. Application of force; INCHOATE OFFENSES
3. To the person of another; ATTEMPT: An attempt requires:
4. That results in bodily harm or offensive contact. 1. The specific intent to perpetrate a crime; AND
ASSAULT: Assault is either: 2. An overt act beyond mere preparation that falls
1. An attempt to commit a battery; OR short of completing the crime (most states require a
2. Intentionally placing another in apprehension of “substantial step” toward completion of the crime).
imminent bodily harm. Withdrawal. Under the common law, abandonment or
FALSE IMPRISONMENT: False Imprisonment consists of: withdrawal is not a defense to attempt. However, under
1. Unlawful (without legal excuse); the Model Penal Code (minority of jurisdictions), a fully
2. Confinement of a person; voluntary and complete abandonment is a valid defense.
3. Without valid consent. Abandonment is not voluntary if it is motivated by a
desire to avoid detection.
PROPERTY OFFENSES
SOLICITATION: Solicitation consists of:
LARCENY: Larceny consists of:
1. Requesting another to commit a crime;
1. A taking;
2. With the intent that the person solicited commit the
2. And carrying away;
crime.
3. Of the personal property of another;
4. By trespass (without consent); Withdrawal. In most jurisdictions, it is not a defense that
5. With intent to permanently deprive. the solicitor renounces or withdraws the solicitation.
However, the Model Penal Code recognizes renunciation
EMBEZZLEMENT: Embezzlement consists of:
as a defense if the defendant prevents the commission of
1. The fraudulent conversion;
the crime.
2. Of the personal property of another;
3. By a person in lawful possession of that property. CONSPIRACY: At common law, a conspiracy consists of:
1. An agreement between two or more persons;
FALSE PRETENSES: False pretenses consists of:
2. To accomplish a criminal objective;
1. Obtaining title;
3. With the intent to enter into the agreement; AND
2. To the personal property of another;
4. With the intent to commit the criminal objective.
3. By an intentional false representation;

Overt Act. Unlike the common law, a majority of states defense to all crimes if the intoxication serves to negate an
also require that an overt act be committed in element of the crime.
furtherance of the criminal objective. The overt act does JUSTIFICATION DEFENSES
not have to be criminal in nature.
NON-DEADLY FORCE: A person without fault may use non-
Pinkerton Liability. A conspirator may be held liable for deadly force in self-defense if she:
crimes committed by their co-conspirators if the crimes 1. Is confronted with unlawful force; AND
were foreseeable and committed in furtherance of the 2. Reasonably believes it is necessary to protect herself
criminal objective. from the imminent use of unlawful force upon
Withdrawal. Withdrawal may be a defense to crimes herself.
committed in furtherance of the conspiracy. However, DEADLY FORCE: A person without fault may use deadly force
withdrawal from the conspiracy is not a defense to the in self-defense if she:
conspiracy itself unless the conspirator: 1. Is confronted with unlawful force; AND
a. Performs an affirmative act that notifies all 2. Reasonably believes that she is threatened with
members of the conspiracy of her imminent death or great bodily harm.
withdrawal;
DUTY TO RETREAT: In a minority of jurisdictions, a person
b. Gives notice in time for the members to
must retreat before using deadly force if the victim can safely
abandon their plans; AND
do so unless:
c. Attempts to neutralize her assistance if she
1. The attack occurs in the victim’s own home;
provided any as an accomplice.
2. The attack occurs while the victim is making a lawful
CRIMINAL CAPACITY arrest; OR
INSANITY: A defendant may be entitled to acquittal if, at the 3. The assailant is in the process of robbing the victim.
time of the crime, the defendant was legally insane. There are IMPERFECT SELF-DEFENSE: Imperfect self-defense can reduce
four formulations of the test to be applied in order to make a murder charge to voluntary manslaughter if the defendant
this determination: kills another based on an honest but unreasonable belief that
1. M’Naghten Rule. Under this rule, a defendant is the use of deadly force was necessary to prevent death or
entitled to acquittal if, because of a mental illness, serious bodily harm.
he did not know:
DEFENSE OF OTHERS: A defendant may defend others with
a. The nature and quality of the act; OR
force if he reasonably believes that the person assisted has
b. The wrongfulness of the act.
the legal right to use force in her own defense. Only some
2. Irresistible Impulse Test. Under this test, a
courts allow imperfect self-defense to be applied to situations
defendant is entitled to acquittal if, because of a
where the defendant was defending another person.
mental illness, he lacked the capacity
a. For self-control and free choice; OR OTHER DEFENSES
b. To conform his conduct to the law. DURESS: The defense of duress is available to the defendant if
3. Model Penal Code Test. Under this test, a the defendant reasonably believed that another person
defendant is entitled to acquittal if, because of a would imminently inflict death or great bodily harm upon him
mental illness, he did not have substantial capacity: or a family member if he did not commit the crime.
a. To conform his conduct to the law; OR MISTAKE OF FACT: Mistake of fact is a defense that shows the
b. To appreciate the wrongfulness of the act. defendant lacked the state of mind required for the crime. If
4. Durham Test. Under this test, a defendant is the charged offense is a specific intent crime, the mistake
entitled to acquittal if the unlawful act would not need not have been reasonable. For malice and general intent
have been committed but for the defendant’s crimes, the mistake must have been reasonable. Mistake of
mental illness. fact is irrelevant if the crime imposes strict liability.
VOLUNTARY INTOXICATION: Voluntary intoxication
(intentional ingestion of an intoxicating substance without
duress, which is known to be intoxicating to the person
ingesting the substance) is a valid defense to specific intent
crimes if the intoxication prevents the formation of the
required intent. Voluntary intoxication does not apply to
general intent, malice, or strict liability crimes.
INVOLUNTARY INTOXICATION: Involuntary intoxication
(ingestion of an intoxicating substance under duress or
without knowledge of its intoxicating effects) is a valid

CRIMINAL PROCEDURE
4th AMENDMENT SEARCHES 2. Conducted pursuant to established police agency
SEARCHES: Under the 4th Amendment, a person is granted procedures that are designed to meet legitimate
protection from unreasonable government searches. A search objectives while limiting the discretion of the officer.
occurs when government conduct violates a person’s STOP AND FRISK (TERRY STOP): Law enforcement officers can
reasonable expectation of privacy. There is a reasonable stop an individual when the officer has a reasonable
expectation of privacy in: homes, hotel rooms, offices, suspicion, based on articulable facts (i.e., more than a
backyard of home (curtilage), and luggage. There is not a “hunch” – less than probable cause), to believe that the
reasonable expectation of privacy in: public streets, open subject is or is about to be engaged in criminal activity. During
fields (even if on private property), garbage, abandoned a Terry stop, an officer can frisk a subject for weapons
property, and anything visible from public space. Absent any without a warrant; however, the officer cannot initiate a
of the exceptions listed below, a warrantless search search for evidence. If the frisk for weapons reveals objects
performed by the government that violates a reasonable whose shape makes their identity obvious (e.g., object is
expectation of privacy is unlawful. Evidence obtained from an obviously contraband), the officer may seize those objects.
unlawful search is usually excluded. ARRESTS AND SEIZURES OF PERSONS
SEARCH WARRANT EXCEPTIONS ARRESTS: In order to arrest an individual, law enforcement
EXIGENT CIRCUMSTNACES: Law enforcement officers may officers must have probable cause to believe that the
conduct a search without a warrant if: individual has committed a crime. An officer has probable
1. The officers are in “hot pursuit” or immediate cause if:
danger; OR 1. The officer witnesses the commission of the crime;
2. The evidence would spoil or disappear in the time it OR
would take to obtain a warrant. 2. A person tells the officer that a crime has been
SEARCH INCIDENT TO A LAWFUL ARREST: Law enforcement committed.
officers may conduct a search without a warrant if the search ARREST WARRANT: An individual may be arrested with or
occurs at the time that a lawful arrest is made. The scope of without an arrest warrant; however, an arrest warrant
the search is limited to objects within the reach of the authorizes law enforcement officers to enter a home to
arrestee. arrest the individual. An arrest warrant is issued by a
CONSENT: Law enforcement officers may conduct a search neutral magistrate based on a finding of probable cause to
without a warrant if a person voluntarily consents to a search. believe that the named individual has committed a crime.
Officers do not have to inform the subject that she has the Without a warrant, officers can arrest an individual inside
right to refuse consent to the search. A third party with the home only if there is:
apparent authority can consent to search. However, officers 1. Consent to enter; OR
cannot search over a present occupant’s objection (e.g., if one 2. Exigent circumstances.
occupant consents and the other occupant refuses, officers 5th AMENDMENT AND MIRANDA
cannot search the property).
5th AMENDMENT: The 5th Amendment provides that no
AUTOMOBILES: Law enforcement officers may conduct a person shall be compelled in any criminal case to be a witness
search without a warrant if they have probable cause to against himself. A defendant who wishes to invoke his 5th
believe that an automobile contains contraband or evidence Amendment right does so by simply not taking the stand.
of a crime. They can search the parts of the vehicle, and
containers inside, which could reasonably contain the items CUSTODIAL INTERROGATIONS: Under Miranda, any
for which there is probable cause. incriminating statement obtained as a result of custodial
interrogation (i.e., suspect is in custody and subject to police
PLAIN VIEW: Law enforcement officers may seize evidence interrogation) may not be used against the suspect at a
without a warrant if: subsequent trial unless the police informed the suspect of his
1. The officers are legally on the premises; Miranda rights.
2. The evidence is observed (with any of the five 1. Custodial. A person is in custody when he
senses) in plain view; AND reasonably believes that he is not free to leave (e.g.,
3. There is probable cause to believe the items are in the back of a police cruiser).
evidence of a crime or contraband. 2. Interrogation. A person is subject to an
ADMINISTRATIVE SEARCHES: Law enforcement officers do interrogation when the police know or should know
not need search warrants to conduct administrative searches that their words or actions are likely to elicit an
if the search is both: incriminating response.
1. Reasonable; AND
© 2020 Studicata | www.studicata.com Criminal Procedure 1

MIRANDA RIGHTS: When a person is in custody, the police INVOLUNTARY STATEMENTS: The 5th Amendment protects
must inform the person of her Miranda rights before against government compulsion of involuntary statements.
subjecting her to a police interrogation. This includes Statements are involuntary only if the police coerced the
informing the subject: defendant into making the statements. To determine whether
1. She has the right to remain silent; a statement was coerced by the police, courts look at the
2. Any statement she makes may be used against her in totality of the circumstances. Relevant factors include:
court; 1. The length of the interrogation;
3. She has the right to consult an attorney and to have 2. The time and location where the interrogation took
the attorney present during questioning; AND place;
4. She has the right to have an attorney appointed if 3. Police tactics used; AND
she cannot afford one. a. Force. The application of force or threats of
MIRANDA WAIVER: A defendant may knowingly and force made by the police to the person
voluntarily waive his Miranda rights. The burden is on the being interrogated renders any statements
government to demonstrate by a preponderance of the made during the interrogation involuntary.
evidence that the waiver was made knowingly and b. Trickery. Trickery or false promises made by
voluntarily. the police to the person being interrogated
may render their statements involuntary.
INVOCATION OF RIGHTS: The police must cease their
However, deceit or fraud by the police (i.e.,
interrogation if the party being questioned affirmatively
lying about an accomplice’s confession)
invokes her:
does not itself make a statement
1. Right to remain silent; OR
involuntary.
a. After a substantial period of time, police can
4. The character of the person being interrogated (e.g.,
go back to the suspect, give Miranda
age, experience, state of health, education level,
warnings again, and seek to interrogate her
sophistication, intoxication, mental condition, etc.)
further.
2. Right to counsel. ADMISSIBILITY OF INVOLUNTARY STATEMENTS: An
a. The interrogation cannot resume until the involuntarily obtained statement is not admissible against a
lawyer is present, the suspect reinitiates the defendant for substantive purposes or for impeachment
interrogation, or 14 days have passed since purposes. Evidence obtained from an involuntary statement
the suspect was released from custody. is fruit of the poisonous tree and is presumptively
inadmissible.
MIRANDA VIOLATIONS: A statement obtained in violation of
Miranda is inadmissible in the prosecution’s case-in-chief, but 6th AMENDMENT RIGHT TO COUNSEL
can be admitted to impeach the defendant. Evidence 6th AMENDMENT: The 6th Amendment guarantees a criminal
obtained from a voluntary statement taken in violation of defendant “the assistance of counsel for his defense.” The 6th
Miranda is admissible. Miranda is violated if: Amendment right to counsel automatically attaches once
1. The police fail to give Miranda warnings before a formal adversarial judicial proceedings have commenced
custodial interrogation; OR (e.g., formal charge, preliminary hearing, indictment,
2. The police fail to cease interrogation of a person arraignment, and all parts of the trial process). By contrast,
after she has affirmatively invoked her right to the 5th Amendment right to counsel must be affirmatively
remain silent or her right to counsel. invoked by the defendant (does not automatically attach).
MIRANDA EXEPCTIONS: There are three main exceptions to 6th AMENDMENT VIOLATIONS: Once a defendant’s right to
the Miranda requirement. The police are not required to give counsel has attached, any attempts to deliberately elicit a
Miranda warnings before questioning a suspect: statement from him in the absence of his attorney violates
1. When the public’s safety is at risk; the 6th Amendment. However, The 6th Amendment right to
2. When the suspect being questioned is not aware counsel is offense-specific; meaning that it only applies to the
that the interrogator is a police officer (e.g., offense that the defendant has been formally charged with.
undercover police officers); OR The police are free to question the defendant about
3. If the questioning is biographical for routine booking unrelated offenses without his attorney present.
purposes. 6th AMENDMENT WAIVER: The 6th Amendment right to
HARMLESS ERROR RULE: If evidence in violation of Miranda is counsel is in effect once it automatically attaches unless the
admitted at trial, a guilty verdict will be upheld if the defendant voluntarily, knowingly, and intelligently waives the
prosecution can prove beyond a reasonable doubt that the right. The defendant must understand the nature of the right
error was harmless because the defendant would have been being waived and the consequences for waiving it.
convicted even without the tainted evidence.

EXCLUSIONARY RULES
EXCLUSIONARY RULE: Evidence obtained in violation of the
defendant’s 4th, 5th, or 6th Amendment rights is inadmissible
in a criminal case. Additionally, all evidence obtained as a
result of the constitutional violation is inadmissible as fruit of
the poisonous tree. These exclusionary rules do not apply to
Miranda violations; they only apply to 4th, 5th, and 6th
Amendment violations.
EXCEPTIONS: The exclusionary rule does not apply if:
1. The police had an independent source for the
evidence that was distinct from the original illegal
source;
2. The discovery of the evidence was inevitable
regardless of the violation;
3. There is attenuation in the causal chain, such that
intervening events and the passage of time can
remove the taint; OR
4. The police relied in good faith on either:
a. Existing law that was later declared
unconstitutional; OR
b. A warrant that, while facially valid, is later
found to be defective.

EVIDENCE
RELEVANCE show that they have the propensity to act in accordance with
LOGICAL RELEVANCE: Evidence must be relevant in order to the alleged character trait), unless:
be admissible. Evidence is relevant if it is both: 1. Character is an essential element of a claim or
1. Probative (evidence is probative if it has any defense (e.g., defamation, negligent hiring, negligent
tendency to make a fact more or less probable); AND entrustment, child custody, etc.); OR
2. Material (evidence is material if it is a fact of a. If character is an essential element of a
consequence in determining the outcome of the claim or defense, it may be shown by
action). reputation, opinion testimony, or specific
instances.
LEGAL RELEVANCE: The court may exclude relevant evidence
2. The case is based on the defendant’s sexual
if its probative value is substantially outweighed by a danger
misconduct
of one or more of the following: unfair prejudice, confusing
a. If the case is based on the defendant’s
the issues, misleading the jury, undue delay, wasting time, or
sexual misconduct, evidence of a past sexual
needlessly presenting cumulative evidence.
assault by the defendant is admissible.
PUBLIC POLICY EXCLUSIONS APPLICATION IN CRIMINAL CASES: In criminal cases, the
SUBSEQUENT REMEDIAL MEASURES: Subsequent remedial prosecution cannot introduce evidence of a defendant's bad
measures are actions taken after an injury or harm that make character to prove that the defendant has the propensity to
future injury less likely (e.g., installing a handrail after a have committed the crime in question. However, the
person falls down the stairs). Subsequent remedial measures defendant may “open the door” and present positive
are not admissible to prove negligence, defective product character evidence so long as it is:
design, or culpable conduct. However, subsequent remedial 1. Pertinent to the crime charged (e.g., if the crime
measures are admissible to show agency, ownership, or charged involves violence, the defendant may only
control of property or for impeachment purposes. put on character evidence of non-violence); AND
SETTLEMENT NEGOTIATIONS: Offers, conduct, or statements 2. Through reputation or opinion testimony (not
made during negotiations to settle or compromise are not specific instances of conduct).
admissible to prove a disputed claim, to prove an amount, or If the defendant opens the door by presenting evidence of
for impeachment purposes. positive character, the prosecution may then introduce
OFFERS TO PAY MEDICAL EXPENSES: Offers to pay medical negative character evidence (must relate to the same
expenses are not admissible to prove liability for the character trait in question) to rebut the defendant in two
plaintiff’s injuries. However, any conduct or statements different ways. The prosecution can
accompanying the offer to pay are admissible (e.g., factual 1. Call its own character witness; OR
admissions accompanying an offer to pay are admissible). a. The witness is limited to reputation or
opinion testimony (not specific instances of
LIABILITY INSURANCE: Evidence that a person was or was not
conduct).
insured against liability is not admissible to prove whether the
2. Cross-examine the defendant’s character witness.
person acted negligently or otherwise wrongfully. However,
a. On cross-examination, the prosecution can
such evidence is admissible to prove a witness’s bias or
introduce evidence of specific instances so
prejudice or to prove agency, ownership, or control.
long as it relates to the same character trait
CHARACTER EVIDENCE in question.
CHARACTER EVIDENCE: Character evidence is evidence of a VICTIM’S CHARACTER EVIDENCE: A criminal defendant may
person’s character or a person’s specific character trait (e.g., introduce reputation or opinion testimony of the victim’s
he is violent; she is honest; he is a reckless driver; etc.). There character if it is relevant to one of the defenses asserted. If
are three forms of character evidence that can be presented: the defendant does so, the prosecution may rebut by
1. Reputation in the community (e.g., “Everyone in the presenting evidence that:
community knows Johnny is violent.”); 1. The defendant possesses the same character trait;
2. Opinion testimony (e.g., “I personally think Johnny is OR
a violent person.”); AND 2. The victim possesses a relevant positive character
3. Specific Instances (e.g., “I saw Johnny get into a bar trait.
fight last weekend.”)
However, in criminal cases involving rape, evidence offered to
APPLICATION IN CIVIL CASES: In civil cases, character prove a victim’s sexual behavior or predisposition is not
evidence is not admissible for propensity purposes (i.e., admissible.
evidence of someone’s character cannot be introduced to
© 2020 Studicata | www.studicata.com Evidence 1

M.I.M.I.C.: Specific instances of conduct are generally not SENSORY COMPETENCE: A witness’s credibility may be
admissible to show propensity but are admissible to show attacked by showing that the witness has a deficiency in
(M.I.M.I.C.): motive or opportunity, intent, absence of her ability to perceive, recall, or relate information (e.g.,
mistake, identity, or common plan or preparation. Specific memory loss) that is not collateral.
instances of conduct are admissible for MIMIC purposes if: HEARSAY DECLARANT: When a hearsay statement has been
1. There is sufficient evidence to support a jury finding admitted in evidence, the declarant’s credibility may be
that the defendant committed the prior act (i.e., attacked, and then supported, by any evidence that would be
cannot “fish” for prior acts without proof); AND admissible for those purposes if the declarant had testified as
2. The probative value of the specific instances of a witness.
conduct is NOT substantially outweighed by the
OPINION TESTIMONY
danger of unfair prejudice to the jury.
LAY WITNESSES: If a witness is not testifying as an expert (i.e.,
HABIT AND ROUTINE PRACTICES: Evidence of a person’s
a lay witness), testimony in the form of an opinion is limited
habit (e.g., putting on a seatbelt) or an organization’s routine
to one that is:
practice (e.g., filing certain paperwork) may be admitted to
1. Rationally based on the witness’s perception;
prove that on a particular occasion the person or organization
2. Helpful to clearly understanding the witness’s
acted in accordance with the habit or routine practice.
testimony or to determining a fact in issue; AND
IMPEACHMENT 3. Not based on scientific, technical, or other
CHARACTER FOR TRUTHFULNESS: A witness’s credibility may specialized knowledge within the scope of an expert.
be attacked by introducing character evidence of the EXPERT WITNESSES: Expert witnesses may testify in the form
witness’s untruthfulness through reputation or opinion of an opinion or otherwise if:
testimony. A witness’s credibility cannot be bolstered 1. The expert witness is qualified by possessing
(evidence of truthful character may not be introduced until sufficient knowledge, skill, experience, training, or
credibility has first been attacked). On cross-examination, a education;
witness’s credibility may be attacked with specific instances 2. The expert’s scientific, technical, or other specialized
of conduct, provided that: knowledge will help the trier of fact to understand
1. The specific instance regards the truthfulness of the the evidence or to determine a fact in issue;
witness; 3. The testimony is based on sufficient facts or data;
2. There is a good faith belief in the prior misconduct; 4. The testimony is the product of reliable principles
AND and methods; AND
3. The specific instance does not involve an arrest or a 5. The expert has reliably applied the principles and
consequence of an arrest. methods to the facts of the case.
PRIOR CONVICTIONS: Evidence of a prior felony or TESTIMONIAL PRIVILEGES
misdemeanor conviction involving dishonesty is usually
SPOUSAL IMMUNITY: A witness in a valid marriage may
always admissible to attack a witness’s credibility (subject to
refuse to testify against his or her spouse in any criminal
the 10-year restriction). Evidence of a prior felony (crime is
proceeding (including a grand jury).
punishable by death or imprisonment for more than 1 year)
that does not involve dishonesty is admissible if it is legally MARITAL COMMUNICATIONS: Communications between
relevant (i.e., probative value is not substantially outweighed spouses are privileged, and may be asserted by either spouse
by the danger of unfair prejudice). However, if more than 10 in both criminal and civil proceedings (even if the parties are
years has elapsed since conviction or release (whichever is no longer married), if the communications were:
later) of any crime, the prior conviction is subject to a reverse 1. Made during the course of a valid marriage; AND
legal relevance test. The party introducing the evidence must 2. Intended to be confidential.
show that the probative value of the conviction substantially ATTORNEY-CLIENT PRIVILEGE: Communications (not sought
outweighs the danger of unfair prejudice. to further a crime or fraud) between an attorney and a client
PRIOR INCONSISTENT STATEMENTS: A witness’s credibility or a person seeking to become a client are privileged if the
may be attacked by introducing the witness’s prior communications were:
inconsistent statements. Extrinsic evidence may only be 1. Made to facilitate legal services; AND
introduced if the witness is given an opportunity to explain or 2. Intended to be confidential.
deny the prior inconsistent statement. However, extrinsic DOCUMENTARY EVIDENCE
evidence of a prior inconsistent statement cannot be used to AUTHENTICATION: All tangible evidence (evidence not
attack the witness’s credibility regarding a collateral matter presented as oral or verbal testimony) must be authenticated.
(i.e., an irrelevant matter). Authentication requires that a party show that the item being
introduced as evidence is what the party claims it to be.

Physical evidence may be authenticated through a witness PRIOR STATEMENTS OF IDENTIFICATION: Prior statements of
with personal knowledge of the object or a witness that can identification (e.g., prior out-of-court identifications in
establish a chain of custody for the object. Documentary lineups, photo arrays, etc.) are admissible for substantive
evidence may be authenticated through stipulation, witness purposes if the declarant is testifying at trial and is subject to
testimony, or handwriting verification. The following cross-examination.
documents are self-authenticating and do not require ADMISSIONS BY A PARTY OPPONENT: Prior out-of-court
extrinsic proof of authenticity: public documents bearing a statements made by a party to the current litigation that are
seal, certified copies of public records, official publications offered by the opposing party are admissible as non-hearsay.
issued by a public authority, newspapers and periodicals,
HEARSAY EXCEPTIONS (UNAVAILABILITY REQUIRED)
notarized documents, commercial paper, trade inscriptions,
and records of regularly conducted business activity certified UNAVAILABILITY REQUIREMENT: A declarant is deemed to
by a custodian of the records. be unavailable as a witness if the declarant:
1. Is exempted from testifying because the court rules
HEARSAY IN GENERAL
that a privilege applies;
HEARSAY: Hearsay is an out-of-court statement that is 2. Refuses to testify despite a court order to do so;
offered to prove the truth of the matter asserted. Hearsay is 3. Testifies to not remembering the subject matter;
not admissible unless it falls under a valid exception. A 4. Cannot be present or testify because of a death or
“statement” includes a person’s oral assertions, written then-existing infirmity, physical illness, or mental
assertions, or nonverbal conduct if the person intended it as illness; OR
an assertion (e.g., head nod, thumbs up, etc.). 5. Is absent and the statement’s proponent has not
NOT OFFERED FOR TRUTH: If an out-of-court statement is not been able, by process or other reasonable means to
offered to prove the truth of the matter asserted, the procure the declarant’s attendance.
statement is not hearsay and is admissible. Common FORMER TESTIMONY: Former testimony is admissible if:
examples of statements that are not offered to prove the 1. The declarant is unavailable;
truth of the matter asserted (thus are admissible) include: 2. The statement was prior testimony given at a trial
1. Verbal acts of independent legal significance offered hearing or deposition (not a grand jury); AND
to prove that the statement itself was made, 3. The opposing party had an opportunity and similar
irrespective of its truth (e.g., defamatory statements, motive to develop the testimony through cross or
threats, etc.); direct examination.
2. Statements offered to show the effect on the
DYING DECLARATION: A statement is admissible if:
listener;
1. The declarant is unavailable;
3. Statements offered to show the declarant’s mental
2. The declarant believed that her death was imminent
state or state of mind; AND
when she made the statement;
4. Statements offered for impeachment purposes.
3. The statement pertains to the cause or
STATUTORILY DEEMED NON-HEARSAY circumstances of her death; AND
PRIOR INCONSISTENT STATEMENTS: Prior inconsistent 4. The action involved is a civil case or homicide.
statements are admissible for substantive purposes if: STATEMENT AGAINST INTEREST: A statement is admissible if:
1. The declarant is testifying at trial and is subject to 1. The declarant is unavailable;
cross-examination; 2. The statement is against the declarant’s self-interest;
2. The statements were previously made under penalty AND
of perjury (i.e., under oath); AND 3. A reasonable person would NOT have made the
3. The prior statements are inconsistent with present statement unless he believed it to be true.
testimony being given at trial.
FORFEITURE BY WRONGDOING: A party forfeits her hearsay
If the statements were not previously made under penalty of objection if the party intentionally or wrongfully makes the
perjury, they can be offered only for impeachment purposes declarant unavailable to testify as proven by a preponderance
(not substantive purposes). of the evidence.
PRIOR CONSISTENT STATEMENTS: Prior consistent HEARSAY EXCEPTIONS (AVAILABILITY IRRELEVANT)
statements are admissible to rebut a claim that the declarant
PRESENT SENSE IMPRESSION: A present sense impression is
is fabricating or has a recent motive to fabricate the
admissible as a valid exception to the hearsay rule. A
statement in court if:
present sense impression is a statement made by the
1. The declarant is testifying at trial and is subject to
declarant in which she describes an event as it takes place or
cross-examination; AND
immediately thereafter.
2. The prior consistent statement was made before the
declarant had a motive to fabricate the statement.

EXCITED UTTERANCE: An excited utterance is admissible as a a. A statement is testimonial if the declarant
valid exception to the hearsay rule. An excited utterance is a would reasonably expect that the statement
statement that concerns a startling event, made by the would be used for prosecution purposes.
declarant when the declarant is still under stress from the 3. The declarant is unavailable to be cross-examined at
startling event. trial; AND
STATE OF MIND: A statement of the declarant’s then-existing 4. The defendant did not have an opportunity to cross-
state of mind (e.g., motive, intent, or plan) or emotional, examine the declarant at a proceeding prior to trial.
sensory, or physical condition (e.g., mental feeling, pain, or
bodily health) is admissible to prove the declarant’s state of
mind or the declarant’s conduct.
MEDICAL DIAGNOSIS OR TREATMENT: A statement of a
person’s past or present condition is admissible so long as it is
made for the purpose of medical diagnosis or treatment.
RECORDED RECOLLECTION: The record may be read into
evidence (only opposing counsel can decide to enter it as an
exhibit into evidence) if the witness cannot recall events or
information provided that:
1. The record is about a matter the witness once had
personal knowledge of;
2. The record was made or adopted by the witness
when the matter was fresh in the witness’s mind;
3. The record accurately reflects the witness’s personal
knowledge; AND
4. The witness can no longer recall the events or
information well enough to testify, even after
reviewing the writing while on the stand.
PRESENT RECOLLECTION REFRESHED: Present recollection
refreshed allows a witness to glance at almost any item
(usually a writing) to refresh her memory while on the stand
(the item is taken away while the witness is testifying and it is
not admitted into evidence). Recorded recollection involves a
writing made or adopted by the witness that accurately
reflects their personal knowledge (opposing counsel may
allow the writing to be admitted into evidence).
BUSINESS RECORDS: A business record is admissible as a valid
exception to the hearsay rule if the record is:
1. Kept in the course of regularly conducted business;
AND
2. Made by a person with knowledge of the matter at
or near the time of the matter's occurrence (e.g., a
secretary who logs calls as they come in).
CONSTITUTIONAL LIMITATIONS
6thAMENDMENT CONFRONTATION CLAUSE: The
Confrontation Clause guarantees a person accused of a crime
the right to confront witnesses against him in a criminal
action (i.e., the right to be present at trial and the right to
cross-examine the prosecution’s witnesses). The use of an
out-of-court statement (even if it falls under a valid hearsay
exception or testimonial privilege) violates the defendant’s
constitutional rights under the Confrontation Clause if:
1. The proceeding is a criminal action (not civil);
2. The statement is testimonial;

FAMILY LAW
GETTING MARRIED The analysis is relatively similar under both approaches:
MARRIAGE REQUIREMENTS: A valid marriage requires that: 1. Categorize the property as separate or marital; THEN
1. The parties obtain a marriage license; 2. Determine an equitable distribution of the marital
2. The marriage is solemnized by a ceremony that is property between the spouses.
conducted by an authorized cleric or judge; AND CATEGORIZATION: Generally, marital property includes all
3. Both parties consent. property acquired during the marriage that is not separate
property. Separate property includes:
COMMON LAW MARRIAGE: In jurisdictions that recognize
1. All property acquired by either spouse before the
common law marriage, the proponent of the marriage must
marriage;
prove that the parties:
2. All property acquired by a spouse during marriage by
1. Cohabitated for the statutory period;
gift, bequest, devise, or descent;
2. Held themselves out as married; AND
3. All property either spouse acquires with the
3. Intended to be married.
proceeds of the spouse’s separate property; AND
PREMARITAL CONTRACTS: Most states will enforce a 4. All passive appreciation of separate property.
premarital agreement as a valid contract if it is:
DISTRIBUTION: Once the court categorizes the property as
1. In writing and signed by both parties;
either separate or marital, the court will then equitably
2. Executed after full disclosure of the property and
distribute the marital property between both spouses. Courts
financial obligations of both parties; AND
are afforded significant discretion in determining the
3. Voluntary – courts consider the following factors to
equitable distribution of martial property at divorce. General
determine whether an agreement was voluntary:
factors include:
a. The presence of independent legal counsel;
1. The income, property, and liabilities of each party;
b. The length of time between the agreement
2. The duration of the marriage;
and the marriage;
3. The obligations for support arising out of a prior
c. The sophistication of the parties; AND
marriage;
d. The presence of other pressing reasons to
4. The lifestyle each spouse is accustomed to; AND
proceed with the marriage (e.g., pregnancy).
5. The contributions made by each spouse toward the
UNENFORCEABLE TERMS: Most courts decide child custody accumulation of marital property.
according to the best interests of the child, regardless of any
SUPPORT ORDERS
premarital agreements. Similarly, a premarital contract that
adversely affects a child’s right to support is unenforceable. SPOUSAL SUPPORT: Under the UDMA, a spouse is eligible for
spousal support if the spouse seeking support:
ENDING THE MARRIAGE
1. Lacks property sufficient for his or her reasonable
ANNULMENT: Annulment is a judicial declaration that a needs and is unable to support himself through
marriage never existed and was invalid from when the parties appropriate gainful employment; OR
entered into it (e.g., bigamy, underage minors, etc.). 2. Is the custodian of a child that it would inappropriate
DIVORCE: Today, every state has adopted a form of no-fault for him to work.
divorce. Common grounds for a no-fault divorce are: Once the court determines that a spouse is eligible for
1. A minimum duration of separation; AND/OR support, the court will then determine the appropriate
2. Irreconcilable differences. amount to award. General factors include:
MARITAL ACTION JURISDICTION: Under the majority view, a 1. The financial resources of the party seeking
state where either party is domiciled has jurisdiction to enter maintenance;
an annulment decree. Under the Full Faith and Credit Clause, 2. The time needed for the spouse seeking support to
a divorce validly granted in one state is entitled to full faith obtain an appropriate job;
and credit in other states if the petitioning party: 3. The duration of the marriage;
1. Was domiciled in the state the granted the divorce; 4. The standard of living established during marriage;
AND 5. The physical/mental condition of the spouse seeking
2. Provided adequate notice of the proceeding to the maintenance; AND
other spouse. 6. The ability of the spouse paying support to meet her
PROPERTY DIVISION AT DIVORCE own needs while meeting those of her spouse.
APPROACHES: Some states follow the community property CHILD SUPPORT: Parents have an absolute obligation to
approach; however, most states have adopted the equitable support their children. Federal law requires every state to
distribution approach for division of property at divorce. provide guidelines to determine the proper amount of child
support owed by a non-custodial parent, which must:
© 2020 Studicata | www.studicata.com Family Law 1

1. Consider the income of the non-custodial parent; FATHER DENYING PATERNITY
2. Provide for the child’s healthcare needs; AND ESTABLISHING PATERNITY: Under the Uniform Parentage Act
3. Be based on specifically descriptive numeric criteria. (UPA), the father-child relationship is established between a
MODIFICATION OF SUPPORT ORDERS: In most states, a man and a child by:
child/spousal support order can only be modified when there 1. An effective acknowledgement of paternity by the
is a substantial change in circumstances of either party man (unless rescinded or successfully challenged);
making the prior order unreasonable. Under the UDMA, a 2. A valid adoption of the child by the man; OR
modification of child/spousal support is allowed only upon a 3. An adjudication of the man’s paternity.
showing of changed circumstances so substantial and PATERNITY PRESUMPTION: A presumption of paternity under
continuing to make the terms unconscionable. Some courts the UPA may only be rebutted by clear and convincing
will not permit a modification of child/spousal support if the evidence. Under the UPA, a man is presumed to be the father
change in circumstances was anticipated or voluntary. of the child if:
CHILD CUSTODY 1. He and the child’s mother are or have been married
BEST INTERESTS STANDARD: Generally, courts determine to each other and the child is born during the
child custody based on the best interests of the child. Courts marriage, or within 300 days after the marriage is
consider multiple factors to determine what custody order terminated;
will serve the child’s best interests. General factors include: 2. Before the child’s birth, he and the child’s mother
1. The needs of the child for a meaningful relationship attempted to marry each in apparent compliance
with both parents; with law, although the attempted marriage is or
2. The ability and willingness of the parents to actively could be declared invalid, and the child is born during
perform their functions as mother and father for the the invalid marriage or within 300 days after its
child’s needs; termination; OR
3. The interaction and interrelationship of the child 3. While the child is under the age of majority, he
with parents, siblings, and any other person who receives the child into his home and openly holds out
may affect the child’s best interests; the child as his own.
4. The child’s adjustment to the child’s home, school, EQUITABLE ESTOPPEL: Under equitable estoppel, a man who
and community; is not the biological father will be estopped from denying
5. The physical/mental health of all involved paternity if:
individuals; 1. He has held himself out as the father; AND
6. The intention of either parent to relocate the 2. Paid support.
principal residence of the child; FATHER ESTABLISHING PATERNITY
7. The wishes of the child’s parents as to custody; AND
LEGITIMATION BY PETITION: To establish his rights, the
8. The wishes of the child as to the child’s custodian.
father may file a petition seeking to legitimate his child.
MODIFICATION OF CHILD CUSTODY: In order to modify a Generally, the father must show that he has:
child custody order, the parent must show that: 1. Assumed parental responsibilities; AND
1. The circumstances have substantially changed; AND 2. Established a substantial parent-child relationship.
2. The modification would be in the child’s best
LEGITIMATION BY MARRIAGE: The marriage of the mother
interests.
and biological father renders the nonmarital child legitimate
UNMARRIED COHIBITANTS so long as the father recognizes the child as his child.
ECONOMIC SHARING: In most states, an express agreement EFFECT OF LEGITIMATION: Upon valid legitimation by petition
(written or oral) between unmarried cohabitants to share or marriage, the father stands in the same position as any
property or otherwise engage in forms of economic sharing is other parent regarding parental and custodial rights with
enforceable, so long as the economic sharing is not intended respect to the child.
as payment for sexual services. However, some states refuse
ADOPTION
to recognize such contracts between unmarried cohabitants
as against public policy. ADOPTION: Adoption is a statutory procedure that
terminates the rights of the biological parents and establishes
REMEDIES: Some states allow unmarried cohabitants to seek
the rights of the adoptive parents. In most states, the
a remedy based on an implied-in-fact contract theory. An
biological parents lose the right to visit their child after the
implied-in-fact contract is formed by the conduct of the
adoption. However, some states will permit visitation if it is in
parties rather than express statements (e.g., commingling
the child’s best interests
funds). Possible equitable remedies include a resulting trust, a
constructive trust, or quantum meruit. CONSENT: Generally, the consent of both parents is required
to place a child up for adoption. However, if the child is born

out of wedlock, consent of the father is only required when
he has assumed parental responsibility. Moreover, an unwed
father who knew of his child’s pending birth is not entitled to
notice of the adoption if he did not take steps to establish a
parent-child relationship with the child.
CONSENT CHALLENGES: A biological parent may challenge
the validity of his/her consent to an adoption on the ground
that his/her consent:
1. Was procured by fraud or duress; OR
2. Failed to comply with statutory formalities.
CONSENT REVOCATION: Generally, there are three different
statutory approaches to a biological parent’s revocation of
valid consent to an adoption:
1. Consent is revocable until the final adoption decree
is entered with the court;
2. Consent is revocable at the court’s discretion up to a
specified amount of time so long as the revocation is
in the child’s best interests; OR
3. Absent fraud or duress, consent is not revocable.

REAL PROPERTY
PRESENT ESTATES AND FUTURE INTERESTS 2. The right to possess the entire property; AND
FEE SIMPLE: In present estates, fee simple is the default 3. The right to transfer their interest in the property
estate. A fee simple is created when the grantor uses any of freely during their lifetime or at death (i.e., no right
the following language: “O to A,” “O to A and his/her heirs,” of survivorship).
or “O to A forever.” JOINT TENANCY: A joint tenancy is a conveyance of real
FEE SIMPLE DETERMINABLE: A fee simple determinable is a property to two or more people that is distinguished by a
conditional conveyance in which the grantor retains a future right of survivorship, whereby the surviving joint tenants
interest as a possibility of reverter. The possibility of reverter automatically take the deceased tenant’s property interest.
vests automatically when the condition fails. A fee simple Thus, joint tenants cannot pass their property interest by will
determinable is created when the grantor uses durational or intestate succession (at death, their property interest
language, such as: “while,” “during,” or “until.” automatically passes to the other joint tenants). To create a
joint tenancy, the grantor must clearly express his intent to
FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT: A fee
create a joint tenancy by using survivorship language (e.g., “as
simple subject to condition subsequent is a conditional
joint tenants with a right of survivorship”). Additionally, the
conveyance in which the grantor retains a future interest as a
four unities must be in place to create a joint tenancy:
right of entry. The right of entry does not vest automatically
1. Possession. Each joint tenant must have an equal
when the condition fails (i.e., the grantor must reclaim the
right to posses and enjoy the whole property (also
property). A fee simple subject to condition subsequent is
required for tenants in common).
created when the grantor uses conditional language, such as:
2. Interest. Each joint tenant must have an equal share
“provided that,” or “on the condition that.”
of the same type of interest (e.g., two joint tenants
FEE SIMPLE SUBJECT TO EXECUTORY INTEREST: A fee simple each have a 50% share in fee simple).
subject to executory interest is a conditional conveyance in 3. Time. Joint tenants must receive their property
which a third party (not the grantor) is granted an executory interests at the same time.
interest in the property. An executory interest is a future 4. Title. Joint tenants must receive their property
interest that divests (i.e., terminates) an earlier interest. interest in the same instrument of title.
LIFE ESTATE: A life estate is a present possessory estate that SEVERANCE OF THE JOINT TENANCY: If any of the four unities
is limited by a person’s life (terminates when the measuring are severed, then the joint tenancy is terminated. When a
life dies). A life estate is created when the grantor uses any of joint tenant conveys her interest to a third party, that party
the following language: “O to A for A’s life,” or “O to A for B’s takes the property as a tenant in common (clearly destroys
life (life estate pur autre vie)” the time and title unities). When a joint tenant grants a
REVERSIONS AND REMAINDERS: Similar to fee simple, a mortgage interest in the joint tenancy to a creditor, the effect
future interest can follow a life estate. If possession of the will depend on the jurisdiction:
land goes back to the grantor after the life estate terminates, 1. In a lien theory jurisdiction (majority view), the
then the grantor retains a reversion. If possession of the land mortgage is treated as a lien and does not terminate
goes to a third party after the life estate terminates, then the the joint tenancy.
third party takes a remainder. A remainder can be vested or 2. In a title theory jurisdiction (minority view), the
contingent. A vested remainder is a future interest that is: mortgage will terminate the joint tenancy, and the
1. Given to an ascertainable (i.e., readily identifiable) tenants will then hold the property as tenants in
grantee; AND common.
2. Not subject to a condition precedent (i.e., a THE LEASEHOLD
condition that must be satisfied in order for the
LEASEHOLD INTEREST: The relationship between a landlord
interest to vest).
and a tenant can create four types of possessory estates
A contingent remainder is a future interest that fails either of (tenancy for years, periodic tenancy, tenancy at will, and
the two above elements. tenancy at sufferance). This relationship is generally governed
COTENANCY by a contract (the “lease”), which contains the covenants of
TENANCY IN COMMON: A tenancy in common is the default the parties. Generally, the tenant has a duty to pay rent in
estate created by a conveyance of real property to two or exchange for his possessory interest in the property.
more people. The grantor need not use any type of explicit TENANCY FOR YEARS: A tenancy for years is an interest that
language to create a tenancy in common (“O to A and B”). lasts for a fixed and ascertainable amount of time. If the term
Each tenant in common has: is longer than one year, then the agreement must be in
1. A separate but undivided interest in the property writing due to the statute of frauds. A tenancy for years
(property does not have to be physically divided); automatically terminates when the term expires.
© 2020 Studicata | www.studicata.com Real Property 1

PERIODIC TENANCY: A periodic tenancy is a repetitive and 3. Landlord did not correct the problem; AND
ongoing interest that continues for a set period of time until it 4. Tenant vacates the premises after a reasonable
is terminated by proper notice from either party (e.g., month- amount of time passed.
to-month lease, year-to-year lease, etc.). The parties must ASSIGNMENTS AND SUBLEASES
intend to create a periodic tenancy. Intent can be express
ASSIGNMENTS: An assignment is a complete transfer of the
(e.g., a specific term in the signed lease agreement) or implied
tenant’s entire remaining term under the lease. In an
(e.g., ongoing payment of rent).
assignment, the landlord can collect rent from the assignee or
TENANCY AT WILL: A tenancy at will continues until it is the original tenant.
terminated by either party. It may be terminated at any time
SUBLEASES: A sublease is a transfer of less than the tenant’s
for any reason, and may be terminated without notice. The
entire remaining term under the lease. In a sublease, the
parties must intend to create a tenancy at will. Intent can be
landlord can only collect rent from the original tenant. The
express (e.g., a specific term in the signed lease agreement
subtenant only has rent obligations to the original tenant.
gives either party or both parties the “right to terminate at
will”) or implied (e.g., ongoing payment of rent at will). If the TERMINATION OF LEASES
agreement gives only the landlord the right to terminate at SURRENDER: A surrender terminates the lease agreement
will, the tenant also gets the right to terminate implicitly. If
and ends the landlord-tenant relationship between both
the agreement gives only the tenant the right to terminate at parties (releases both parties from their duties and
will, the landlord is not given the right to terminate at will.
obligations under the lease agreement). A surrender occurs
TENANCY AT SUFFERANCE: A tenancy at sufferance is created when a tenant returns possession of the leased premises to
when the tenant refuses to vacate the premises after his the landlord before the expiration of the lease and the
lease has terminated. This situation creates a temporary landlord consents.
tenancy, where the terms of the prior lease control, until: ABANDONMENT: An abandonment occurs when the tenant
1. The landlord evicts the tenant; unilaterally returns possession of the leased premises before
2. The landlord re-leases the property to the tenant; expiration of the lease without the landlord’s consent. Here,
OR the tenant will have to continue paying rent until the landlord
3. The tenant voluntarily vacates. is able to find a replacement tenant. If the tenant refuses to
HABITABILITY AND SUITABILITY pay rent, the landlord is entitled to damages for the
difference between the original rent and the rent received
IMPLIED WARRANTY OF HABITABILITY: A warranty of
from the replacement tenant.
habitability is implied in every residential lease (not
commercial leases). The implied warranty of habitability DUTY TO MITIGATE: Under the majority rule, the landlord has
requires landlords to maintain their property such that it is a duty to mitigate damages if the tenant abandons the
reasonably suitable for basic human needs (failure to comply property early or is evicted by making reasonable efforts to
with applicable housing codes constitutes a breach). The re-rent the property to another tenant. The landlord is
tenant cannot waive habitability protection. If the landlord entitled to damages for the difference between the original
breaches the implied warrant of habitability, the tenant may: rent and the rent received from the replacement tenant.
1. Vacate the premises and terminate the lease (the Under the minority rule, the landlord does not have to
tenant is not required to vacate the premises); mitigate damages.
2. Withhold or reduce the rent (if the tenant chooses to EASEMENTS AND FIXTURES
withhold rent, the tenant must first notify the EXPRESS EASEMENT: An express easement by grant arises
landlord of the problem and give the landlord a when the easement is affirmatively created by the parties in a
reasonable opportunity to correct the problem); writing that satisfies the statue of frauds. An express
3. Remedy the defect and offset the costs against the easement by reservation is created when a grantor conveys
rent; OR land but reserves an easement right in that land for his own
4. Defend against eviction. use and enjoyment.
IMPLIED COVENANT OF QUIET ENJOYMENT: Every lease IMPLIED EASEMENT BY IMPLICATION: An implied easement
(commercial and residential) includes an implied covenant of by implication is created when:
quiet enjoyment. The implied covenant of quiet enjoyment is 1. A single tract of land is divided by a common owner
breached (tenant may withhold rent or seek damages) if the and a piece of the land is conveyed to another;
tenant is constructively evicted. A constructive eviction 2. Before the division, the common owner used the
occurs if the: single tract of land as if there was an easement on it;
1. Landlord caused the premises to be unsuitable for 3. After the division, the common owner’s use of the
their intended purposes; conveyed land must be continuous and apparent;
2. Tenant notified the landlord of the problem; AND

4. Such use must be reasonably necessary for the REAL ESTATE CONTRACTS
owner’s use and enjoyment. LAND SALE CONTRACT REQUIREMENTS: A valid contract for
IMPLIED EASEMENT BY NECESSITY: An implied easement by the sale of land must satisfy the statute of frauds. Generally,
necessity is created when: the contract must be in writing, signed by the party to be
1. A single tract of land is divided by a common owner charged, and contain all essential terms (e.g., parties,
and a piece of the land is conveyed to another; AND property description, price). However, promissory estoppel
2. Necessity arose when the land was divided into two operates as a valid exception where a party reasonably and
separate estates where one of the properties foreseeably relied on the land sale contract to his detriment
became virtually useless without the easement. and would suffer hardship if the contract is not enforced.
IMPLIED EASEMENT BY PRESCRIPTION: An implied easement Also, partial performance by either the seller or buyer is
by prescription is created when a landowner allows a treated as a valid exception to the writing requirement in
trespasser to use his land continuously for the statutory many jurisdictions if any two of the following three are met:
period. The trespasser’s use must be: 1. Possession by the purchaser;
1. Hostile (i.e., without permission from the owner of 2. Payment of all or part of the purchase price; OR
the land); 3. Improvements to the land made by the purchaser.
2. Open and notorious (i.e., not hidden); AND MERGER: Covenants under the land sale contract are merged
3. Continuous for the statutory period. into the deed and cannot be enforced unless the covenant is
TERMINATION OF AN EASEMENT: An easement may be also in the deed. Prior to closing, any liability must be based
terminated by any of the following: on a provision in the land sale contract. After closing, any
liability must be based on a deed warranty.
1. Release. An easement is terminated if the holder
expressly releases it. The release must be in writing IMPLIED COVENANT OF MARKETABLE TITLE: In every land
and satisfy the statute of frauds. sale contract, the seller has a duty to convey marketable title
2. Merger. An easement is terminated if the holder to the buyer at closing. Marketable title is title that is free
acquires fee title to the underlying estate – the from an unreasonable risk of litigation. If there is a defect in
easement merges into the title. title rendering title unmarketable, it must be fixed or cured
3. Abandonment. An easement is terminated if the before closing (at which point the contract and deed merge
holder demonstrates an intent to never use the and the deed controls). If the seller cannot deliver marketable
easement again through physical action (i.e., title at closing, the buyer can rescind the contract.
requires more than non-use or statements). IMPLIED WARRANTY OF FITNESS AND SUITABILITY: The
4. Prescription. An easement is terminated if the implied warranty of fitness or suitability applies to defects in
holder fails to protect against trespassers for the new construction. It protects against latent defects (i.e.,
statutory period. defects that are not discoverable from a reasonable
5. Sale to a Bona Fide Purchaser. An easement may be inspection) and warrants that the new construction is safe
terminated if the landowner sells the property. and fit for human habitation. In most jurisdictions, both the
6. Estoppel. An easement is terminated if the initial purchaser and subsequent purchasers may recover
landowner reasonably relies to his detriment on the damages. In other jurisdictions, only the initial purchaser can
easement holder’s assurance that the easement will enforce this warranty.
no longer be used. DUTY TO DISCLOSE DEFECTS: Most jurisdictions impose a
7. End of Necessity. An easement by necessity lasts as duty on the seller to disclose material defects to the buyer.
long as the easement is necessary – if it is no longer Material defects are defects that substantially impact the
necessary, the easement terminates. value of the property, desirability of the property, or health
FIXTURES: A fixture is tangible personal property (i.e., chattel) and safety of its occupants.
that is attached to real property in such a manner that it is EQUITABLE CONVERSION AND RISK OF LOSS: In the majority
treated as part of the real property when determining its of jurisdictions, the purchaser holds equitable title during the
ownership. Generally, a chattel is considered a fixture if the period between the execution of the contract and the closing
owner of real property intends for the chattel to become a and delivery of the deed. During this period, the purchaser is
fixture by attaching it to the real property. Such intent is responsible for any damages to the property while the seller,
judged by applying an objective, reasonable person standard as holder of legal title, has the right to possess the property.
that examines such factors as: In a minority of jurisdictions, the risk of loss is on the seller
1. The importance of the chattel to the real property; until closing and delivery of the deed.
2. Whether the chattel was specially designed for use
MORTGAGES
on the real property; AND
3. The amount of damage that removal of the chattel THE MORTGAGE: A mortgage is a security device used to
would cause to the real property. secure repayment of a debt. The note is the borrower’s

promise to repay the debt or loan. The mortgage is the device 4. Hostile (the adverse possessor cannot have the true
that provides security to the note by allowing the lender to owner’s consent to possess or use the property).
force a foreclosure sale to recover the outstanding debt if the DEED REQUIREMENTS: A valid deed must:
borrower defaults on the loan. A purchase-money mortgage 1. Satisfy the statute of frauds;
is a mortgage where the borrower takes out a loan for the 2. Identify the parties and describe the property;
purpose of purchasing property. A future-advance mortgage 3. Be delivered (a deed is delivered when the grantor
is a line of credit used for home equity, construction, demonstrates a present intent to transfer the
business, and commercial loans (i.e., a “second mortgage”). property to the grantee or his agent – physical
ALTERNATIVE SECURITY DEVICES: There are three main transfer of a deed is not required); AND
alternatives used instead of mortgages as security devices: 4. Accepted (acceptance is presumed).
1. Deed of Trust. A deed of trust operates like a DEED TYPES: There are three kinds of deeds:
mortgage, but involves three parties: the borrower, 1. General Warranty Deed. General warranty deeds
the lender, and a third-party trustee who holds title provide the greatest amount of title protection. The
of the property until the loan is paid off. grantor warrants title against all defects, even if the
2. Installment Land Contract. The seller finances the grantor did not cause the defects.
purchase in an installment land contract retaining 2. Special Warranty Deed. Special warranty deeds
title until the buyer makes the final payment on the provide less title protection than general warranty
installment plan. deeds. The grantor warrants titles against defects
3. Absolute Deed. An absolute deed is an instrument caused by the grantor.
used by the borrower to transfer the deed to the 3. Quitclaim Deed. Quitclaim deeds provide the least
property instead of conveying a security interest in amount of title protection. The grantor makes no
exchange for a loan. warranties as to the health of the title.
TRANSFERS: The borrower may transfer the property by deed COMPETING CLAIMS TO TITLE
(i.e., selling), will, or intestate succession. The borrower
FIRST IN TIME, FIRST IN RIGHT: Under the common law, if a
remains personally liable after the transfer unless the lender
grantor transfers the same piece of property to multiple
releases the borrower from his obligation or the lender
grantees, the first grantee to receive the deed acquires
modifies the transferee’s obligation. If the transferee assumes
rightful title. In the absence of a recording statute, the
the mortgage, the transferee is primarily liable upon default
common law rule controls.
while the original borrower is secondarily liable. If the
transferee takes title subject to the mortgage, the transferee RECORDING STATUTES: There are three types of recording
is not personally liable upon default while the original statues that have been adopted by the states to resolve
borrower remains liable (this is the default/presumed option). competing claims to title:
1. Race Statutes. The first grantee to record acquires
TITLES
title, regardless of notice.
ADVERSE POSSESSION: Adverse possession allows a 2. Notice Statutes. A subsequent purchaser acquires
trespasser in unlawful possession of land owned by another title if the purchase is made without notice of a prior
to acquire title to that land if their possession is: unrecorded conveyance.
1. Continuous for the statutory period; 3. Race-Notice Statutes. A subsequent purchaser
a. Seasonal or infrequent use will suffice if the acquires title if the purchase is made without notice
use is consistent with the type of property of a prior unrecorded conveyance and the
being possessed. subsequent purchaser records first.
b. An adverse possessor can tack on the time
NOTICE: There are three types of notice:
of possession of a prior adverse possessor to
1. Actual Notice. A subsequent purchaser has actual
meet the statutory period requirement if
notice when he has personal knowledge of a prior
the adverse possessors are in privity with
interest.
one another.
2. Constructive Notice. A subsequent purchaser is on
c. The statutory period will not run against a
constructive notice when the prior interest is
true owner who had a disability (e.g.,
recorded (i.e., validly recording a deed by publicly
insanity, imprisonment, etc.) at the time the
registering it automatically puts the entire public on
adverse possession begun.
notice).
2. Open and notorious (the adverse possessor must
3. Inquiry Notice. A subsequent purchaser has inquiry
use the property as if they were a true owner – their
notice when a reasonable investigation would have
possession cannot be hidden from the true owner);
revealed the existence of prior claims (e.g., someone
3. Exclusive (the adverse possessor cannot share
is clearly living on the property in question).
possession of the land with the true owner); AND

TORTS
INTENTIONAL TORTS defendant:
ELEMENTS GENERALLY: To establish a prima facie case for an 1. Causes or is a substantial factor in bringing about;
intentional tort, the plaintiff generally must prove: 2. A physical invasion of the plaintiff’s real property;
1. Voluntary Act. The defendant’s actions must be AND
voluntary (e.g., not a reflex). 3. Has specific or general intent.
2. Intent. The defendant must have specific or general TRESPASS TO CHATTELS: A trespass to chattels occurs when
intent. the defendant:
a. Specific Intent. An actor has specific intent 1. Causes or is a substantial factor in bringing about;
when the actor acts with the purpose of 2. An interference with the plaintiff’s right of
causing the consequence. possession in a chattel; AND
b. General Intent. An actor has general intent 3. Has specific or general intent.
when the actor knows that the consequence CONVERSION: A conversion occurs when the defendant:
is substantially certain to occur. 1. Causes or is a substantial factor in bringing about;
c. NOTE. The actor need not intend the 2. An interference with the plaintiff’s right of
specific injury that results from her actions possession in a chattel;
to be liable for an intentional tort (e.g., D 3. Where the interference is so serious, it deprives the
punches P in the shoulder breaking P’s arm; plaintiff entirely of the use of the chattel; AND
it is irrelevant whether D intended to break 4. Has specific or general intent.
P’s arm, only that D intended to cause the
DEFENSES TO INTENTIONAL TORTS
contact that resulted in injury).
3. Causation. Causation is satisfied if the defendant’s CONSENT: The plaintiff’s consent (express or implied) to the
conduct was a substantial factor in bringing about defendant’s conduct is a defense to intentional torts if:
the harm. 1. The consent was valid (e.g., no fraud, incapacity,
etc.); AND
BATTERY: A battery occurs when the defendant:
2. The defendant’s conduct remained within the
1. Causes or is a substantial factor in bringing about;
boundaries of the plaintiff’s consent (e.g., cannot use
2. Harmful or offensive contact;
a knife in a boxing match).
3. To the plaintiff’s person; AND
4. Has specific or general intent SELF-DEFENSE: Generally, a defendant is not liable for harm
to the plaintiff if:
ASSAULT: An assault occurs when the defendant:
1. The defendant reasonably believed that that the
plaintiff was going to harm him or another; AND
2. Reasonable apprehension in the plaintiff;
2. The defendant used only the amount of force that
3. Of imminent harmful or offensive bodily contact to
was reasonably necessary and proportionate to
the plaintiff’s person; AND
protect himself or another.
4. Has specific or general intent
NECESSITY: The defense of necessity is available to a
FALSE IMPRISONMENT: A false imprisonment occurs when
defendant that enters onto the plaintiff’s land or interferes
the defendant:
with the plaintiff’s personal property when the defendant
does so to prevent an injury or some other severe harm.
2. The confinement of the plaintiff within fixed
Under private necessity (the defendant’s act is done to
boundaries (the plaintiff must be aware of the
benefit a limited number of people), the defendant must pay
confinement or harmed by it); AND
for the actual damages that he caused. However, the
3. Has specific or general intent
landowner may not use force to exclude the defendant.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: IIED Under public necessity (the defendant’s act is done for the
occurs when the defendant: public good), the defendant is not liable for property damage
1. Acts with extreme or outrageous conduct; that he caused.
2. Which causes or is a substantial factor in bringing
NEGLIGENCE REQUIREMENTS
about;
3. Severe emotional distress; AND ELEMENTS: The elements of the prima facie case for
4. Has intent to cause severe emotional distress or acts negligence are as follows:
with recklessness as to the risk of causing severe 1. The defendant owed a duty to the plaintiff to
emotional distress. conform to a specific standard of care;
2. The defendant breached that duty;
TRESPASS TO LAND: A trespass to land occurs when the
© 2020 Studicata | www.studicata.com Torts 1

3. The breach was the actual and proximate cause of reasonable person in the patient’s position would not have
the plaintiff’s injuries; AND consented upon learning of the risk.
4. The plaintiff sustained actual damages or loss. PSYCHOTHERAPISTS: In the majority of states,
NEGLIGENCE: DUTY psychotherapists have a duty to warn potential victims of a
TO WHOM A DUTY IS OWED: A duty of care is owed to all patient’s serious threats of harm if the patient has the
foreseeable plaintiffs that may be harmed by the defendant’s apparent intent and ability to carry out such threats and the
breach of the applicable standard of care. There are two potential victim is readily identifiable.
separate views: LANDOWNERS/LAND POSSESSORS: Under the traditional
1. Under the majority view (Cardozo), the defendant is approach, the standard of care that landowners owe to
only liable to plaintiffs within the foreseeable zone of entrants upon their land varies depending on the status of the
danger. entrant. There are three types of entrants to consider:
2. Under the minority view (Andrews), the defendant 1. Trespassers. A trespasser is a person who enters the
owes a duty to everyone harmed. landowner’s property without valid consent or
AFFIRMATIVE DUTY TO ACT: In general, there is no necessity. There are two types of trespasser:
affirmative duty to act affirmatively or help others. However, a. Discovered/Anticipated. Discovered or
a duty to act affirmatively will arise if the defendant: anticipated trespassers enter the land
1. Places the plaintiff in danger; without consent, but may be expected by
2. Has a special relationship with the plaintiff (e.g., the landowner. The landowner owes a duty
common carrier/passenger, innkeeper/guest, family to discovered/anticipated trespassers to
members, etc.); warn of (or make safe) hidden dangers on
3. Has a duty to act affirmatively imposed by law; OR the land that pose a risk of death or serious
4. Begins to administer aid or attempt to rescue the bodily harm (only applies to artificial
plaintiff. conditions that the landowner is aware of).
b. Undiscovered. Undiscovered trespassers
NEGLIGENCE: STANDARDS OF CARE
enter the land without consent, and are not
THE REASONABLE PERSON STANDARD: The reasonable expected by the landowner. The landowner
person standard is the default standard of care. It should be owes no duty to undiscovered trespassers.
applied unless a special standard of care applies (e.g., 2. Licensees. A licensee is a person who lawfully enters
children, professionals, physicians, landowners, negligence the landowner’s property for her own purpose or
per se, etc.). Here, the standard of care owed by the benefit, rather than for the landowner’s benefit (e.g.,
defendant to the plaintiff is that of a reasonably prudent social guests). The landowner has no duty to inspect
person under the circumstances as measured by an objective his property for licensees. However, the landowner
standard. The defendant is presumed to have average mental does owe a duty to licensees to warn of (or make
abilities and knowledge. Physical disabilities may be taken safe) hidden dangers on the land that pose an
into account (e.g., the standard of care for a blind person unreasonable risk of harm (applies to both artificial +
would be that of a reasonable prudent blind person under the natural conditions that the landowner is aware of).
circumstances as measured by an objective standard). 3. Invitees. An invitee is a person who is invited on the
Intoxicated people are held to the same standard as sober property for the owner’s own benefit or mutual
people unless the intoxication was involuntary. benefit with the invitee (e.g., a customer shopping in
CHILDREN: Children are held to the standard of care of a a store that is open to the public). The landowner
reasonably prudent child of similar age, experience, and owes a duty to the invitee to reasonably inspect the
intelligence under the circumstances (more subjective). land for hidden dangers (artificial or natural) that
However, if the child is engaged in adult activity, the court will pose an unreasonable risk of harm, and if
not take the child’s age into account (i.e., the child will be discovered, make them safe.
held to an “adult” standard). Several states have rejected the traditional approach
PROFESSIONALS: A professional (e.g., nurses, lawyers, distinctions between licensees and invitees simply applying a
accountants, engineers, architects, etc.) is expected to exhibit reasonable person standard to landowners. In these states,
the knowledge and skill of a member of the profession in landowners owe the same duty of reasonable care to all
good standing in similar communities. entrants on their land regardless of their status as invitees or
PHYSICIANS: Physicians are held to a national standard of licensees (although, status of the entrant may still be relevant
care and have a duty to disclose the risks of treatment to to determine reasonableness under the circumstances).
enable a patient to give informed consent. This duty is only ATTRACTIVE NUISANCE DOCTRINE: A landowner owes a duty
breached if an undisclosed risk was so serious that a to child trespassers to warn of (or make safe) artificial
conditions on the land, provided that:

1. The artificial condition exists in a place where the 1. An employer-employee relationship exists (not an
landowner knows or has reason to know that independent contractor relationship); AND
children are likely to trespass; 2. The employee’s commission of the tort occurs within
2. The landowner knows or has reason to know that the scope of employment.
the artificial condition poses an unreasonable risk of BUSINESS PARTNERS: The negligence of one business partner
death or serious bodily harm; can be imputed on other business partners if it is committed
3. The children, due to their age, do not appreciate the within the scope of the business’s purpose.
danger involved; AND
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
4. The risk of harm outweighs the expense of making
the condition safe. ZONE OF DANGER: The plaintiff can recover for NIED if:
1. The defendant negligently caused a threat of
NEGLIGENCE PER SE: When a statute imposes upon any
person a specific duty for the benefit or protection of others,
physical impact;
a violation of the statute will constitute negligence per se if 2. The plaintiff was within the “zone of danger” of
the plaintiff: the threatened physical impact; AND
1. Is in the class of people meant to be protected by 3. The threat of physical impact caused emotional
the statute; AND distress.
2. Suffers the type of harm the statute was designed to BYSTANDER RECOVERY: The plaintiff bystander can recover
protect against. for NIED if:
NEGLIGENCE: PROOF OF FAULT 1. The defendant negligently inflicted bodily injury to
RES IPSA LOQUITUR: Res ipsa loquitur (“the thing speaks for another;
itself”) is applied when an element of negligence 2. The plaintiff is closely related to the person
is difficult to prove, but the circumstances make it obvious injured by the defendant;
that the defendant’s negligence was the most likely cause of 3. The plaintiff was present at the scene of the
the harm. In order for res ipsa loquitur to apply, the plaintiff injury; AND
must show that the accident resulting in the harm was: 4. The plaintiff personally observed the injury.
1. Of a kind that ordinarily does not occur in the 5. Some jurisdictions also require that the plaintiff
absence of negligence; AND manifest physical symptoms after witnessing the
2. Caused by an agent or instrumentality within the injury.
defendant’s exclusive control. SPECIAL RELATIONSHIP: The plaintiff can recover for NIED in
NEGLIGENCE: CAUSATION certain circumstances where a pre-existing relationship exists
CAUSATION: In order to prove negligence, the plaintiff must between the defendant and plaintiff (e.g., doctor/patient).
show that the defendant’s conduct was both the actual and This commonly arises when:
proximate cause of the plaintiff’s injury. 1. The defendant negligently mishandles a corpse; OR
2. The defendant negligently provides false medical
ACTUAL CAUSE: To prove actual cause, the plaintiff must
information (e.g., healthy plaintiff is told that she has
show that her injury would not have occurred but for the
terminal cancer).
defendant’s breach of the applicable standard of care owed.
LIABILITY OF MULTIPLE DEFENDANTS
PROXIMATE CAUSE: To prove proximate cause, the plaintiff
must show that her injury was a foreseeable result of the JOINT AND SEVERAL LIABILITY: When two or more parties
defendant’s conduct. An intervening cause is an outside force are jointly and severally liable, each party is independently
or action that contributes to the plaintiff’s harm after the liable for the full extent of the damages stemming from the
defendant’s act or omission has occurred. If the intervening tortious act. Thus, if a plaintiff wins a money judgment
cause is unforeseeable, it is a superseding cause and the against jointly and severally liable defendants, the plaintiff
defendant’s liability to the plaintiff will be cut off. may collect the full value of the judgment from any one of
them. A contribution action allows a defendant who pays
EGGSHELL PLAINTIFF RULE: Under the eggshell plaintiff rule
more than his share of the total liability to recover from the
(“take your victim as you find him rule”), the defendant is
other liable defendants.
liable for all harm suffered by the plaintiff, even if the plaintiff
suffered from an unforeseeable, preexisting mental or ALTERNATIVE LIABILITY: If a plaintiff cannot identify with
physical condition that aggravates the harm. specificity which among multiple defendant’s caused
his harm, alternative liability allows the plaintiff to shift the
SPECIAL RULES OF LIABILITY
burden of proving causation to the defendants (even though
RESPONDEAT SUPERIOR: Under the doctrine of respondeat only one of them could have been responsible).
superior, an employer may be liable for torts committed by
INDEMNIFICATION: In torts, indemnification usually arises in
an employee if:
situations involving vicarious liability or strict liability.

Indemnification allows a passive tortfeasor who was forced to 1. The product was defective in manufacture, design,
pay damages to recover a complete reimbursement from an or failure to warn;
active tortfeasor. 2. The defect existed when the product left the
DEFENSES TO NEGLIGENCE defendant’s control; AND
3. The defect caused the plaintiff’s injury when the
CONTRIBUTORY NEGLIGENCE: In a contributory negligence
product was used in a foreseeable way.
jurisdiction, a plaintiff cannot recover damages if his own
negligence contributed to his injury in any way, unless the MANUFACTURE DEFECTS: A defect in manufacture requires
defendant: the plaintiff to show that the product:
1. Was engaged in wanton and willful misconduct; OR 1. Deviated from its intended design; AND
2. Had the last clear chance to avoid injuring the 2. Fails to conform to the manufacturer’s own design.
plaintiff, but failed to do so. DESIGN DEFECTS: There are two tests for a defect in design:
COMPARATIVE FAULT: In a comparative fault jurisdiction, the 1. Under the consumer expectation test, the plaintiff
plaintiff’s own negligence limits recovery but is not must show that the product is less safe than the
necessarily a complete bar to recovery. Jurisdictions have ordinary consumer would expect.
adopted two different approaches to comparative fault: 2. Under the risk-utility test, the plaintiff must show
1. Pure Comparative Negligence. Under pure that the product’s risks outweigh its benefits and
comparative negligence, the plaintiff’s recovery is that there is a reasonable alternative design.
limited by the percentage of fault the jury attributes FAILURE TO WARN: A failure to warn defect requires the
to the plaintiff’s own negligence (e.g., if the jury plaintiff to show:
finds the plaintiff is 95% at fault, the plaintiff can 1. The plaintiff was not warned of the risks regarding
recover 5% of her damages). the use of the product;
2. Modified Comparative Negligence. Under modified 2. The risks are not obvious to an ordinary user; AND
comparative negligence, the plaintiff’s recovery is 3. The designer/manufacturer was in fact aware of
limited by the percentage of fault the jury attributes such risks.
to the plaintiff’s own negligence. However, if the SCOPE OF PRODUCTS LIABILITY: Any person foreseeably
plaintiff is more at fault than the defendant, the injured by a defective product (e.g., purchasers, other users,
plaintiff’s recovery is completely barred. In some bystanders, etc.) may pursue a products liability claim. A strict
modified comparative negligence jurisdictions, the liability claim under products liability may only be brought
plaintiff’s recovery is completely barred if the against a merchant who is in the chain of distribution (e.g.,
plaintiff and defendant are equally at fault. manufacturer  wholesaler  retailer).
STRICT LIABILITY DEFAMATION
STRICT LIABILITY: Under strict liability, a defendant will be DEFAMATION: Defamation occurs when the defendant:
liable for damages regardless of how careful she was (i.e., 1. Publishes (the statement must be communicated to
negligence is not required to be held liable). a third party who understands the content of it);
DOMESTIC ANIMALS: An owner of a domestic animal (e.g., 2. A defamatory statement (the statement must be
cats, dogs, livestock, etc.) will not be strictly liable for harm false and not an opinion);
caused by the animal unless the owner knows or has reason 3. Of or concerning the plaintiff;
to know of the animal’s dangerous propensity. 4. Causing damage to the plaintiff’s reputation.
WILD ANIMALS: An owner of a wild animal (e.g., tigers, PUBLIC OFFICIALS: A public official is a person who has
monkeys, etc.) is strictly liable for any harm caused by the control over government office (includes political candidates).
animal regardless of safety precautions taken by the owner. A general purpose public figure is a person of persuasive
However, owners are generally not strictly liable for harm power and influence in society. A limited purpose public
caused to trespassers. figure is a person who has injected himself into a public
ABNORMALLY DANGEROUS ACTIVITIES: A defendant is controversy. If the plaintiff is a public official or a public
strictly liable for damages caused to the plaintiff if he is figure, the plaintiff must prove actual malice. This requires
engaged in abnormally dangerous activities. An abnormally the plaintiff to show that the person who made the
dangerous activity is one that is: defamatory statement either knew it was false or acted with
1. Inherently dangerous; reckless disregard for the truth.
2. Inappropriate for the location chosen; PRIVATE INDIVIDUALS: A private individual is any person that
3. Virtually impossible to make safe; AND is not a public official or public figure. If the plaintiff is a
4. Of little value to the community. private individual and the defamatory statement is a matter
PRODUCTS LIABILITY: A strict liability claim under products of public concern, the plaintiff need only prove that the
liability requires the plaintiff to show: statement was false and the speaker was at least negligent.

TRUSTS AND ESTATES
INTESTACY 1. In writing;
INTESTATE SUCCESSION: Any property that does not pass by 2. Signed by the testator; AND
will upon the decedent’s death will be distributed according 3. Signed by at least two witnesses.
to the state’s applicable intestacy statutes. In most states: INTERESTED WITNESSES: Under the common law, the signing
1. If the decedent is survived by only a spouse (no of the will must be witnessed by two disinterested witnesses
descendants), the surviving spouse will inherit the (individuals who do not receive any benefits under the will).
entire estate. However, some states provide that a However, virtually every state has abolished this common law
certain portion of the estate will be given to the rule and allow interested witnesses to validly witness the
decedent’s parents and the parents’ issues. signing of a will. In a minority of states, the interested witness
2. If the decedent is survived by a spouse and forfeits his inheritance unless two additional disinterested
descendants, the surviving spouse will inherit one- witnesses serve as valid witnesses to the will. Still, some
half or one-third of the decedent’s estate with the states only allow interested witnesses to inherit their
surviving descendants inheriting the rest. Under the intestate share of the estate.
Uniform Probate Code (UPC), the surviving spouse HOLOGRAPHIC WILLS: A holographic will is a handwritten will
will inherit the entire estate if all of the descendants that is not witnessed. Most states do not recognize
are descendants of the surviving spouse. holographic wills. However in states that do recognize
3. If the decedent is not survived by a spouse, the holographic wills, the holographic will is only valid if the
decedent’s surviving descendants will inherit the testator signs it personally. No precise words are required to
entire estate equally. make a holographic will valid; however, it must contain
4. If the decedent is not survived by a spouse or operative words legally sufficient to validly devise the
descendants, the decedent’s surviving parents will property.
inherit the entire estate equally. If there are no
INTEGRATION OF WILLS
surviving parents, the descendants of the decedent’s
parents will inherit the estate. INTEGRATION OF DOCUMENTS: Integration of documents
usually arises when pages or portions of a will become
ADOPTED CHILDREN: Today, adopted children are entitled to
separated. A document will be integrated into the will if:
receive the same share, under intestacy laws, as biological
1. The testator intended the document to be part of
children. In some states, a child may be informally adopted
the will; AND
through adoption by estoppel when a person takes a child in
2. The document was physically present at the time of
and assumes parental responsibilities. Generally, adoption in
the will’s execution.
fact or by estoppel terminates the adopted child’s right to
inherit from her biological parents. INCORPORATION BY REFERENCE: Incorporation by reference
deals with the incorporation of extrinsic documents into the
NON-MARITAL CHILDREN: Today, non-marital children may
will (rather than pages or portions of the original will). In most
inherit from either parent so long as the facts establish a legal
states, a document or writing may be incorporated into a will
parent-child relationship (non-marital children inheriting from
by reference if:
a father must first establish paternity).
1. The testator intended to incorporate the document
HALF-BLOOD CHILDREN: Today, in almost every state, half- into the will;
blood children (i.e., two people who share one parent, but 2. The document was in existence at the time the will
not the other) are treated equally as whole-blood children. In was executed; AND
a minority of jurisdictions, they are treated less favorably and 3. The document is sufficiently described in the will.
sometimes excluded if whole-blood kin exist.
REVOCATION
ADVANCEMENTS: Today, gifts to heirs during a testator’s
REVOCATION BY SUBSEQUENT INSTRUMENT: A will can be
lifetime are not considered advancements on the heir’s
revoked by:
intestate share of the estate unless:
1. A subsequent written instrument that is executed for
1. The decedent declared his intent to make the gift an
the sole purpose of revoking the prior will; OR
advancement in a contemporaneous writing; OR
2. A subsequent will containing a revocation clause or
2. The heir acknowledged the gift to be an
provisions that are inconsistent with those of the
advancement in writing.
prior will (only revokes to the extent it conflicts with
WILL EXECUTION REQUIREMENTS the prior will).
WILL EXECUTION: A will is valid if the specific formalities REVOCATION BY CANCELLATION: A will can be revoked if the
provided by state law are met. Generally, these formalities testator (or another person in his presence and at his
require a valid will to be: direction) burns, tears, obliterates, or destroys the will with
© 2020 Studicata | www.studicata.com Trusts and Estates 1

the intent to revoke the will. Under the common law, words 2. Describe the interest being disclaimed sufficiently;
of cancellation are valid only if they come in physical contact AND
with the words of the will (e.g., words written over the 3. Be delivered or filed.
original terms of the will). Under the UPC, words of ABATEMENT: Beneficiaries under wills are entitled only to the
cancellation need not touch any of the words of the will, but net value of estate assets. The net value represents what
they must be somewhere on the will to validly revoke. remains of the decedent’s assets at death after the payments
PARTIAL REVOCATION: In most states, when marks of of debts, expenses, and taxes. If there are more claims against
cancellation (e.g., putting a line through terms in the will) are an estate from creditors than there are assets to cover all of
found on a will known to last have been in the testator’s the devises made under the will, the devises abate.
possession, a presumption arises that such marks were made STOCK SPLITS AND DIVIDENDS: Under the common law (still
by the testator with the intent to revoke. The burden to followed in some states), a stock dividend constitutes a
overcome this presumption is on the party claiming that the property interest that is separate from shares of stock
devise has not been revoked. received through a specific devise. Under this rule, the
DEPENDENT RELATIVE REVOCATION (DRR): Under DRR, the beneficiary of the underlying shares of stock does not receive
valid revocation of a will may be ignored if the will was the additional shares that were obtained through stock
revoked under the testator’s mistaken belief of law or fact dividends. Under the majority view, beneficiaries are entitled
that the testator could revive an earlier will, or modify his to additional shares owned by the testator that were acquired
disposition of property by a new will. as a result of stock splits or dividends.
CONSTRUCTION PROBLEMS DEVISES TO CLASSES: A testator may devise property to a
class of individuals (e.g., “I leave $20,000 to be divided
LAPSED LEGACIES: If a beneficiary named in a will
equally among all my children). A class may increase or
predeceases the testator, absent an alternate disposition of
decrease in number until the testator’s death. If a member of
the devise specified by the testator, the devise lapses into the
the class predeceases the testator, her share is split evenly
estate’s residue unless the jurisdiction’s anti-lapse statute
among the remaining members of the class.
preserves the devise for the beneficiary’s descendants.
DISINHERITANCE: A child that is intentionally omitted from a
ANTI-LAPSE STATUTES: Under an anti-lapse statute, devises
will is not entitled to a share of the decedent’s estate.
will vest in the descendants of the predeceased beneficiary if
the predeceased beneficiary: PRETERMITTED CHILDREN: A pretermitted child is a child who
1. Is a blood relative of the testator; AND is unintentionally omitted from a will. Pretermitted children
2. Has descendant(s) who survive the testator. are entitled to the share that they would have received had
the testator died intestate so long as the testator did not
ADEMPTION: Under the doctrine of ademption, if the subject
intend to omit the child from his will.
matter of a specific devise is not in the estate at the time of
the testator’s death, the devise to the beneficiary adeems or WILL CONTESTS
fails. However, in most jurisdictions today, a specific devise CAPACITY: A will is invalid if the testator lacked mental
will adeem only if the testator intended the devise to fail. If capacity when the will was executed. To prevail in a will
the testator did not intend for a specific devise to fail, the contest for lack of capacity, the contestant must prove that
beneficiary is entitled to: the testator did not know or understand:
1. Any property in the testator’s estate, which the 1. The nature and extent of his property;
testator acquired as a replacement for the specific 2. The persons who are the natural objects of his
devise; OR bounty; OR
2. A monetary devise equal to the value of the specific 3. The disposition he was making of his property.
devise. UNDUE INFLUENCE: A will is invalid if the testator executed
SLAYER STATUTES: A person who feloniously and the will while under undue influence. Undue influence occurs
intentionally kills the decedent is barred from claiming a when a person exerts such control and influence over the
share of the decedent’s estate as either an heir or a mind of the testator as to overcome the testator’s free will.
beneficiary under the decedent’s will. Generally, the To prevail in a will contest for undue influence, the contestant
decedent’s estate is distributed as if the killer had must prove that:
predeceased the decedent. 1. The testator was susceptible to undue influence;
DISCLAIMERS: A beneficiary under a will can disclaim or 2. The wrongdoer had the opportunity to exert undue
renounce his interest under a testator’s will causing the influence over the testator;
disclaimed property to pass as if the disclaiming party 3. The wrongdoer actively participated in drafting the
predeceased the testator. A valid disclaimer must: will; AND
1. Be in writing and signed by the person making the 4. The will evidences a result that appears to be the
disclaimer; effect of undue influence.

TRUST CREATION trust instrument. Generally, a court will permit a deviation if
TITLE DIVISION: A trust is a fiduciary relationship between the the purposes of the trust:
trustee(s) and the trust beneficiaries. When a trust is created, 1. Have been satisfied;
title to property is divided between legal and equitable title: 2. Have become unlawful; OR
1. Legal Title. The trustee holds legal title to the 3. Are impossible to carry out.
property and becomes the owner of record for the CY PRES DOCTRINE: If it becomes unlawful, impossible, or
property. impracticable to carry out the purpose of a charitable trust,
2. Equitable Title. The beneficiary holds equitable title the Cy Pres doctrine allows the court to modify the terms of
to the property and is entitled to the financial the charitable trust “as near as possible” to the original
benefits of the property. intention of the settlor to prevent the trust from failing.
TRUST RELATIONSHIPS: There are three main parties involved MODIFICATION BY THE PARTIES: Generally, a trust is
in the creation of a trust: irrevocable and cannot be modified unless the settlor
1. Settlor. The settlor is the person who creates the retained the right to do so in the terms of the trust
trust (usually the person who places the original instrument. However, in a minority of jurisdictions, the settlor
assets into the trust). is free to modify or revoke the trust instrument without
2. Trustee. The trustee is the person who holds the express authorization to do so.
assets of the trust for the benefit of the TRUST TERMINATION
beneficiaries. The trustee manages the trust and its
TERMINATION: Generally, a trust may be terminated if:
assets under the terms of the trust.
1. The trust is revoked or expires pursuant to its terms;
3. Beneficiary. The beneficiary is the person who is
2. The material purpose of the trust has been satisfied
entitled to the assets or profits of the trust.
or becomes unlawful, contrary to public policy, or
CREATION REQUIREMENTS: A valid express trust is created if impossible to carry out;
the following five elements are met: 3. The settlor and all of the beneficiaries unanimously
1. The settlor has intent to create the trust; agree to terminate;
2. There is trust property (i.e., the res); 4. All of the beneficiaries agree AND no material
3. An ascertainable beneficiary exists; purposes for the trust remain;
4. The trust has a trustee; AND 5. Termination will further the purpose of the trust due
5. All parties comply with the requisite formalities. to circumstances that were not foreseen by the
TYPES OF TRUSTS settlor; OR
REVOCABLE/IRREVOCABLE TRUSTS: Under the common law 6. The court or trustee determines that the value of the
(majority view), a trust is irrevocable unless the settlor trust property is too low to justify the cost of
expressly retains the right to revoke or amend the trust. administration.
Under the Uniform Trust Code (minority view), a trust is POWERS AND DUTIES OF TRUSTEES
revocable unless the trust expressly provides otherwise. FIDUCIARY REQUIREMENTS: As a fiduciary, the trustee must:
TESTAMENTARY TRUSTS: A testamentary trust is created 1. Manage the trust property exclusively for the benefit
through provisions of the settlor’s will and does not come of all the trust’s beneficiaries; AND
into existence until the settlor dies (must meet the same 2. Administer the trust in good faith pursuant to the
formalities as the will). terms and purposes of the trust.
RIGHTS OF CREDITORS DUTY OF CARE: The trustee possesses a duty to exercise the
RIGHTS OF CREDITORS: The creditors of the beneficiary of a degree of care and skill as a person of ordinary prudence
trust have no greater rights in the trust property than the would exercise in dealing with his own property. In making
rights of the beneficiary. If the trust prevents a beneficiary this determination, the focus is on the trustee’s conduct, not
from receiving the trust principal, then his creditors have no the results of such conduct. Under the majority view, the
right to reach the trust principal either. While creditors settlor may limit the potential liability of a trustee by
cannot go after the principal, they may go after the interest including an exculpatory clause in the trust instrument.
income if there are no spendthrift provisions. Moreover, once However, exculpatory clauses do not excuse the trustee for
trust income is paid to the beneficiary, a creditor may initiate acts done in bad faith.
appropriate proceedings to reach that income in order to DUTY OF LOYALTY: The trustee owes a duty of loyalty to the
satisfy a claim. beneficiaries where the trustee may not obtain any personal
MODIFICATION OF TRUSTS gain from administering the trust, except for fees. The settlor
may expressly waive the trustee’s duty of loyalty in the trust
DEVIATION: Trustees and beneficiaries can request that the
instrument. However, a waiver will not excuse the trustee for
court permit a deviation from administrative provisions in the
acts done in bad faith.

UCC SECURED TRANSACTIONS
ARTICLE 9 APPLICABILITY b. An assignment of accounts that does not
SCOPE OF ARTICLE 9: Article 9 of the UCC applies to any transfer a significant part of the assignor’s
transaction intended to create a security interest in outstanding accounts.
personal property or fixtures (not mortgages on real PRIORITY RULES
property). A security interest gives a creditor (secured party) PERFECTED vs. UNPERFECTED: Generally, a perfected security
the right to sell a debtor’s property in order to satisfy a debt. interest has priority over a conflicting unperfected security
COLLATERAL: Collateral refers to the property in which a interest in the same collateral.
security interest is created, and it extends to identifiable MULTIPLE PERFECTED CREDITORS: Between multiple
proceeds from the property that serves as collateral. Article 9 perfected creditors, the first to file obtains priority. Some
defines different types of collateral as follows: collateral is not subject to the state filing system or cannot
1. Goods. Goods are all things that are moveable when otherwise be filed. In these instances, the first to perfect
a security interest attaches. obtains priority. Generally, knowledge of a prior unperfected
2. Consumer Goods. Consumer goods are goods that interest will not prevent a potential secured party from filing
are used mainly for personal, family, or household first to obtain priority.
purposes.
EXCEPTIONS TO THE PRIORITY RULES
3. Inventory. Inventory includes goods that are kept by
a person for sale or lease. ORDINARY COURSE OF BUSINESS: Buyers in the ordinary
4. Accounts. A security interest in a debtor’s course of business are protected even though their interest in
“accounts” covers any right to payment of a the property is created after the attachment or perfection of
monetary obligation, whether or not earned by a security interest. Buyers in the ordinary course of business
performance, for property that has been or is to be take the collateral free of the security interest created by the
sold (i.e., accounts receivable). A secured party can seller. The protected buyer may sell the purchased collateral
collect directly from the person who owes the to a third-party free of the secured party’s security interest.
debtor if the debtor defaults. A buyer in the ordinary course of business is a person who:
1. In good faith and without knowledge that the sale to
ATTACHMENT AND PERFECTION
him is in violation of the security interest of a third
ATTACHMENT: Attachment is essentially how a security party;
interest is created. Once a security interest attaches, it 2. Buys in the ordinary course from a person in the
becomes enforceable. A valid attachment requires that: business of selling goods of that kind.
1. There is a valid security agreement memorializing
CONSUMER GOODS: A buyer of consumer goods takes the
the security interest;
goods free of a security interest, even if perfected, if the
2. The debtor possesses rights in collateral beyond
buyer buys:
mere possession; AND
1. Without knowledge of the security interest;
3. The creditor extends value to the debtor.
2. For value;
PERFECTION: Once the security interest attaches, it is 3. Primarily for the buyer’s personal, family, or
enforceable. Perfection of the interest only enhances the household purposes; AND
secured party’s rights to the property serving as collateral. 4. Before the filing of a financing statement covering
Generally, there are three different methods in which a the goods.
security interest may be perfected:
PURCHASE-MONEY SECURITY INTEREST: Generally, PMSIs
1. Filing. The filing of a financing statement or the
have priority over prior perfected security interests if the
security agreement with the state by an authorized
PMSI is properly executed. A PMSI is either:
party is the primary method of perfection.
1. A security interest held by the seller of collateral to
2. Taking Possession. A secured party may perfect a
secure payment of all or part of the price; OR
security interest in negotiable documents, goods,
2. A security interest of a person that gives value to a
instruments, or money by taking mere possession of
debtor so that the debtor may acquire rights in or
such items.
the use of collateral.
3. Automatic Perfection. The following security
interests are perfected automatically when they However, an unperfected PMSI in inventory will not have
attach: priority over a perfected security interest in the same
a. A purchase-money security interest in collateral. A PMSI in non-inventory collateral has priority over
consumer goods; AND a conflicting security interest in the same collateral if the
PMSI is perfected at the time the debtor receives possession
of the collateral or within 20 days thereafter.
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RIGHTS OF THE SECURED PARTY
RIGHT TO REPOSSESS: Upon default, the secured party may
attempt to take possession of the collateral without judicial
process so long as they do not commit a breach of the peace.
RIGHT TO DISPOSE: Upon default, a secured party may sell,
lease, license, or otherwise dispose of any or all of the
collateral in its present condition or in any commercially
reasonable manner.
RIGHTS OF THE DEBTOR
NON-COMPLYING DISPOSITION: When a creditor makes a
non-complying disposition of collateral under Article 9, the
debtor can:
1. Recover actual damages;
2. Recover statutory damages; OR
3. Be subject to judicially mandated disposition of the
collateral.
REDEMPTION: Generally, a debtor or any secondary obligor
has the right to redeem (i.e., reclaim) collateral until the
secured party has disposed of it or entered into a contract for
its disposition. To redeem collateral, the debtor must:
1. Fulfill all obligations secured by the collateral; AND
2. Pay the reasonable expenses and attorney fees.
SURPLUS/DEFICIENCY: Generally, when a secured party sells
or disposes of collateral, the amount collected varies from the
amount of the obligation. If the sale brings in more than the
underlying obligation, the secured party must pay the debtor
for any surplus. Conversely, when the sale brings in less than
the underlying obligation, the obligor is liable for any
deficiency.
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