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647 terms

Law School mastery

Law: writing, torts, property, contracts
STUDY
PLAY
be alert, experiment, be patient, general principles first
hints for using the writing process well
letter for your boss/client
office memo
what you might submit to a court
brief
rule-based reasoning
past case implemented this rule.
Analogical reasoning
the person in the past case was in a similar situation
counter-analogical reasoning
this is different from the past case because
policy-based reasoning
we want to achieve this policy, so the ruling should be
Narrative
reaching ruling by story
preponderance of the evidence
the standard of proof that must be established to win a civil case. The standard is met when a party's evidence indicates that it's more likely than not that the fact is as the party alleges it to be.
purpose of Uniform Commercial Code
standardize transaction of goods across state lines
definition of Goods in Uniform Commercial Code
all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Article 8) and things in action.
example of formal requirements in Uniform Commercial Code
A contract for the sale of goods for the price of $5,000 or more is not enforceable by way of action or defense unless there is some record sufficient to indicate that a contract for sale has been made between the parties and signed by the party against which enforcement is sought or by the party's authorized agent or broker. A record is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this subsection beyond the quantity of goods shown in the record.
purposes of tort law
1. peaceful means for adjusting rights, prevent "taking the law into their own hands"
2. deter wrongful conduct
3. encourage socially responsible behavior
4. restore injured parties to their original condition
5. vindicate individual rights of redress
6. Allocating burdens
insurance system
in the back of the tort system is an...
US court system
Federal State (varies by state)
Supreme court State Supreme
Appellate Courts of Appeal/ Superior
District courts District court
supra
above
infra
below
discussion of Toker v. Westerman
Welfare, contracts enforced? Milk today, extra price, discourage bad acts, societal good? unconscionable. injury to the public
instant the contract is made
when we judge the validity of a contract
don't always look for hard and fast rules.
key to torts, contracts and property
actual damages
needs to be shown in a negligence case
Brown v. Kendall
dogs, hits owner (name of case), Dog fight. If the injury was unavoidable, and the conduct of the ∆ was free from blame, he will not be liable. Burden of proof on π to show ∆ acted without due care.
civil remedy
torts are not given a criminal remedy, but a...
Expectation interest
restore buyers to how they expected they would be
fault-based liability
both Intentional torts & Negligence have _____-_____ _________, but strict liability dies not
rule in Brown v. Kendall
"If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it. . . ."
Individual's right to own land to the exclusion of everyone else
Classical definition of property:
Johnson v. M'intosh
case involving native American property rights, ruled for US rights. Reasoning: European law and lack of civilization among slaves
if someone improves land, they get the right to own it.
labor theory of property
without hurting someone else
Some claim that property rights can't help someone
self-development
Hagel argued that property rights are essential to
Sales or transactions in goods
Article 2 of the Uniform Commercial Code
ambiguous
the original Article 2 of the UCC is __________ on whether some things are goods
lawyer's reasoning
If I was in Cincinnati...
hard edged rules of entitlement
whoever kills the fox, gets it
ambiguous standards
whatever feels right
Ghen v. Rich
RULE: When someone does all that is possible to secure control over a wild animal, within the recognized custom it becomes property of the securer.
no fault
strict liability
culture
_______ defines property rights
strict liability
holding a defendant liable without a showing of negligence
negligence
failure to act with the prudence that a reasonable person would exercise under the same circumstances
Garratt v. Dailey
Boy moves chair from underneath an old lady. If the defendant "knew with substantial certainty" that his actions would cause harmful contact, then the defendant is liable for battery.
rules and ambiguities
main things to put in outlines.
intent
difference between negligence and assault and battery
inherited rule
rule from prior authorities
dictum
in court commentary
processed rule
rule that meets the facts of the case
balancing test
example of common rule structure
section 2 revision
part of UCC that wasn't adopted
no
Does the UCC cover sale of land?
pros of bright line rules
reduces cost, more certainty (expectations), less subjective, easier to resolve/less litigation
future goods
Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are ___________. A purported present sale of future goods or of any interest therein operates as a contract to sell.
ambiguities
If you don't understand the __________, you don't understand the law.
riparian doctrine
1. Water belongs to those who own the land bordering the watercourse
2. Share right of reasonable use of water
3. Liable if use unreasonably interferes with others'
prior appropriation system
1. anyone is entitled to divert water.
a. Provided the water is not being used by someone else
b. provided you're first
c. provided you put it to good use (erickson)
muddy rule
love thy neighbor is an example of a
intent
Fault does not depend on the
Spano v. Perini Corp.
• Strict liability was originally based in trespass.
• Defendant blasting and there was a garage across the street that was damaged by the blasting.
• Explosion is the movement of particles (movement from literal trespass to something more figurative.
• Strict liability: one who engages in abnormally dangerous activities must assume the responsibility for the consequences regardless of the trespass.
margin
most of the world is not on the
margin
most of law school is on the
principled consistency
Understanding similarities and differences leads to
punishment
Contract law is about compensation, not
Pierson v. Post
RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership.
Dissent of Pierson v. Post
muddy test-- first pursuer
Affirmative duty
(Specific Performance Duty) is a duty to do something for someone. rarely enforced under common law, but more recently.
Summary judgement
facts not in dispute, skips trial to production based on the law
pocket parts
softcover addendums
yes
are "future goods" goods?
intent
replacement for direct force
intentional torts
Writ of trespass became
Negligence
action on the case became
no
Can we detf the harm involved;
(c) the social value that the law attaches to the type of use or enjoyment invaded;
(d) the suitability of the particulalized case: if restitution is too*tion, cooperation, and safe worker use
fault
whether or not somaone took care. used in negligence, but no20harmful/offensive contact, and such contact has to occur.
eminent domain
1. taking
2. For public use
3. Just compensation
boyce v. Brown
fractured ankle had screw put it no problems for 7 years, another doctor took out the screw and ankle healed. Not all cases require an xray, must depend on expert testimony to say if an ordinary professional would have taken an xray
penn central v. new york city
1978 - Takings - Restriction on Use - Upheld that the restrictions imposed (by the Landmarks Law) are substantially related to the general welfare and not only permit reasonable use but also afford appellants opportunities to further enhance the property. 3-factor regulatory takings test. Court must evaluate a regulatory takings claim based on (1) the economic impact of the regulation, (2) the owner's reasonable investment-backed expectations, and (3) the character of the regulatory action.
no
typically, is stupidity or insanity a defense against the reasonable prudent person standard?
required
we do not look at average! we look at what is ___________ for the profession.
specialized
you move your due care standard if you hold yourself as a __________ professional
statute of limitations
That period of time established by state law during which a lawsuit may be filed
malpractice (negligence)
1. learning, skill, abiity
2. judgement
3. diligent care
locality rule
A mesure of the standard of care, by which a Professional is held to the standard of care of the community in which they practice.
similar locality rule
A mesure of the standard of care, by which a Professional is held to the standard of care of the communities similar to the one in which they practice.
national rule
A mesure of the standard of care, by which a Professional is held to the standard of care of the nation as a whole. this is the typical standard
10.2
case names (bluebook)
10.3
Reporters and other sources (bluebook)
10.4
court and jurisdiction (bluebook)
10.5
date or year (bluebook)
option-6
how to type §
10.6
weight of authority (bluebook)
10.7
prior and subsequent history (bluebook)
12.1
basic citation forms--statutes (bluebook)
12.2
choosing the proper citation forms-- statutes (bluebook)
16
periodicals (bluebook)
15
administrative and executive materials (bluebook)
T6
abbreviations (bluebook)
T13
periodicals (bluebook)
self-defense
A person is entitled to use reasonable force to prevent any harmful or offensive bodily contact and confinement/imprisonment
1.2
Introductory signals (Bluebook)
cf.
an abbreviation meaning "compare"
2-713
buyer's damages for non-delivery or repudiation.
Lucas v. South Carolina Coastal Council
Lucas buys two properties next to the beach and goes to build two houses, but when he goes to get the permits he finds that the Council had moved the Set Back line past his property to where he can't build his houses.
Court States: Decides in Lucas' favor. The Council owes Lucas one million dollars. When the government deprives the owner of all economically viable use, the government must pay just compensation. This only becomes a taking when the government takes and destroys all of it.
it
refer to the court as __ in writing
minority requirements
1. public use (highways, railways, etc.) to private
2. public use land being taken (private enity remains accountable to the public)
3. public use, private ownership (Independent publiv purpse--condemnation heps)
United States v. 564.54 acres of land
can you be remedied for more then fair market value? no
eminent domain
just compensation v. fair market value is a debate in _______________ ______________.
penn central test
balancing: is it a taking?
1. Economic impact
-investment-backed expectations
2. nature of the taking
-physical invasion or something else?
3. not expectation, but property. 4. How severe a taking?
Medical malpractice
1. duty to inform & breach
Material risks and alternatives
-- anything that changes mind
what would this plaintiff want to know?
- what would the RPP want to know?
-what a reasonable prudent physician would disclose
2. causation.
--if informed of risks, would not have accepted treatment.
--what would this patient have done/ what would the RPP have done?
--the jury has to decide.
3. injury --risks actually realized.
Contracts practice lessons
1. reference every fact that seems disputable
2. be concise and relevant.
3. write like a memo-- but don't make it pretty.
4. never divorce facts from definitions (IE, restitution mistakes)
5. read carefully and remember-- this is not a math test.
discrete contract
low probability of familiarity with other party, not a repeated game
relational contracts
are contracts whose provisions are dynamic with respect to the environment in which they are executed.
offer-and-acceptance
The necessary elements of mutual assent; for example, an agreement of one party to buy and another party to sell; replaced by UCC
bargain
an agreement between parties (usually arrived at after discussion) fixing obligations of each
consistent
rules for determining moment of formation are not ____________.
2-204
Formation of contract under UCC, can be made in any manner sufficient to show agreement.
Standard of interpretation
based on intention, or meeting of the minds.
2-207
additional terms in acceptance or confirmation
Morrison v. MacNamara
medical procedure done while standing guy fainted and hit his head. National standard was to do the test sitting down, local standard was to do it standing. Went with the national standard→must exercise the "degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances". Local rule outdated
• Now use similar community in similar circumstances
fiancé
a man engaged to be married
fiancée
a woman engaged to be married
Federal Practice digest
digest by West for Federal courts
regional digest
digest by West only for state courts.
state digest
digest by west for state and federal courts in 1 state
B<P*L
one is liable if.... (L. Hand in Carroll)
B>=P*l
one is not liable if.... (L. Hand in Carroll)
pokora v. Wabash ry. co.
P carefully approached a train crossing with obstructed view got hit. Complaint dismissed bc his conduct was contributory negligence. P has a duty to stop, look, listen, and get out of his car and look if safe/possible
• Must be able to stop within a range of vision
contributory negligence
behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence
reasonable prudent person
Hand formula meant to approximate, not replace ________ _________ _____________ standard
negligence per se
An act that is considred inherently negligent because of a violation of a law or ordinance is referred to as ___________ ______ _____. There may be an excuse, only if such excuse is enumerated in past case law.
statute, standard of care
the _________ is the ______ __ _______ if:
1. purpose of statute is designed to prevent the arm that occurred
2. statute is designed to protect people like the plaintiff
[4]
topic 4 in digest would be referred to by ___.
just
"Just compensation is rarely __________."-- Prof. Baradaran
expectations
takings is in large part about ________________.
Loretto v. Teleprompter
Building owner says government requirement that she tolerate cable box and wire is a taking; Permanent physical occupation is always a taking regardless of degree of public benefit or private burden; strict liability, bright line rule
physical invasion
reasons for bright-line rule re: ______ _______ in takings doctrine

1. limits ability to exclude
2. to use
3. to sell/profit from
4. free from disturbance
per se, takings
____ _____ rules against _________, given for public use
1. physical occupations=takings
2. all economic use deprived=takings
negligence
not keeping a statute is ____________, but the full effects of a statute not being followed is not _________.
wallace v. rosen
woman touched other to move during a fire drill. battery is the knowing or intentional touching of a person against his will in a rude, insolent, or angry manner. In a crowded world, a certain amount of personal contact is inevitable and must be accepted. Harmful or offensive must meet reasonable standard
R8
capitalization (bluebook)
yes
letter of acceptance is mailed,
crashes. do most people think the contract was made?
Exaction
a requirement imposed by a local government that a developer contributes to the community by providing an amenity, paying an impact fee, or making some other monetary contribution as a condition of development
no
needs some other law (e.g. Nuicance) to prove affirmative duty. Is it a taking w/just compensation?
takings
5th amendment sufficient for ______. public use
principal-agent
Duties between these two parties are to compensation, reiumbursement and indemnifivation
Stanchniewiez v. mar-cam Corp.
statute and regulation: standard of care for serving beer to drunkards.
determining statute relevance in tort law
1. Does the statute apply?
-what harm is the statute designed to prevent?
-What is the text of the surrounding statutes?
-Other context signals.
Who is the stat3A adds to intent to make harmful or offensive contact, inigned to protect?

Statute%2t to cause harm--exception to normal rule of intent, which is only "harmful or offensive"
transfer of intent
If we have intent, we can transfer it to any plaintiff injured or any other intentional tort.
U.S.C.A.
United States Code Annotated. A commercially published edition to the United States Code.
U.S.C.
United States Code. A compilation of Congressional statutes and their amendments which is organized into fifty subject titles.
titles
Sorting of US Code
U.S.C.S.
Unites States Code Service
tragedy of the commons
situation in which people acting individually and in their own interest use up commonly available but limited resources, creating disaster for the entire community
Justice Thomas
I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is ... uncommonly silly." Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it.
tort of conversion
taking something and using it for your own purposes
coase theorem
If property rights are well-defined and transaction costs are low, private parties will work out problems by themselves.
specific performance
equitable remedy in contract law requiring the breaching part to perform according to the specific terms of the contract
moore v. regents of the university of california
∆: body parts aren't property b/c never ruled such. Policy arguments dictate not to extend the definition. "better left to the legislature."
Fee Simple Absolute
The highest or most complete form of ownership that can be held under the law. The ownership rights go on forever. full bundle of sticks
punitive damages
Damages that are awarded to punish the defendant, to deter the defendant from similar conduct in the future, and to set an example for others.
nominal damages
a trivial sum (usually $1.00) awarded as recognition that a legal injury was sustained (as for technical violations of a contract)
compsenatory damages
compensation for losses that can readily be proven to have occurred and for which the injured party has the right to be compensated (Torts in particular use this)
mitigate damages
a legal term used when a party injured by a breach of contract is required by law to take resonablesteps to minimize the harm done
no clear definition
Who is a lost volume seller?
American Law Reports
secondary authority that is leading annotated law reporter published by Lawyers Co-op. Distinguishing feature not the scope of cases that it reports, but the extensive editorial commentary that follows each reported case
American Jurisprudence
Legal Encyclopedia
Corpus Juris Secundum
legal encyclopedia published by West
treatise
Law article treating a specific subject systematically and thoroughly
restatement
a scholarly compilation of the common law by the American Law Institute.
united states reports
the official record of cases heard and disposed of by the Supreme Court including the full opinions of the justices
Federal reporter
is a case law reporter in the United States that is published by West Publishing. The third and current ______________ series publishes decisions of the United States courts of appeals and the United States Court of Federal Claims; prior series had varying scopes that covered decisions of other federal courts as well
assault
a battery without actual harmful or offensive contact. You need, instead, apprehension of imminent harmful or offensive contact, and intent to cause imminent apprehension of (or actual) harmful or offensive contact
Parker v. 20th century fox
actress refuses mitigating offer after contract breach; recovers full price of original contract
closed range
cattle must be fenced
open range
crops must be fenced
court of equity
A court that decides controversies and administers justice according to the rules, principles, and precedents of equity. frequently require specific performance
specific performance
equitable remedy requiring the breaching party to perform the specific terms of the contract
Copylease v. Memorex
SPECIFIC PERFORMANCE
• M manufactures goods and C sells
• C really want specific performance
Ruling:
- remedy at law must be inadequate
• Cali does not recognize for K that require "continuing series of acts"---long term relationship
• exception to this is when goods are unique (2-217----C says that all other options were inferior
• in comments, not just uniquess but inability to cover is strong evidence of "other proper circumstances"
• output and production K specifically mentioned in 2-217
2-711
buyer's remedies guide
2-703
seller's remedies guide
efficient breach
The theory that a party should break a contract if it makes the breaching party better off even after compensating the non-breaching party with expectancy damages.
2-105
location of definition of "good" in UCC
liquidated damages
Amount predetermined by parties to contract as total compensation due injured party should the other party breach the contract
penalty clause
a term specifying an exorbitant amount for breach of contract, intended to frighten a party into performance
2-709
action on the price
Erickson v. Queen Valley Ranch
water waste case-- is private use beneficial
false imprisonment
the direct restraint of one person of the physical liberty of another without adequate legal justification. the person must be conscious (or harmed).
balance the equities
modern rule for encroachments-- allow two options-- balance what was done.
Peters v. Archambault
unusual rule: Mass law allows house encroaching to be torn down.
advantages of injunctions in encroachment
is a court order that prevents a party from performing a specific act.
advantages of injunctions in encroachment
-damages do not always take into consideration owner's plans
-market expectations?
lein
the legal claim of one person upon the property of another person to secure the payment of a debt or the satisfaction of an obligation
INS v. AP
issue: does AP have a right to protection? not binding today.
penalty clause
it is either liquidated damages or a __________________, exclusively.
forseeable damages
in Hadley v. Baxendale, court redefined natural damages as __________________.
intentional torts
assault, battery, emotional distress, false imprisonment are examples of _________.
intent
substantial certainty or purpose
learned hand
judge.
1. restated Hadley's doctrine
2. wrote L. Albert
peters v. Archambault
encroachment case involving beachfront property Rule: encroacher won
adverse possession
a method of acquiring title to real property by possession for a statutory period under certain conditions, especially a non-permissive use of the land with a claim of right when that use is continuous, exclusive, hostile, open, and notorious
Somerville v. Jacobs
rule: 2 choices, sell land or buy building.
privity
The contractual relationship between the two parties of a contract. If party A contracts with party B and party B subcontracts with party C, there is not privity between party A and C.
color of title
That which gives the appearance of title, but is not title in fact; that which, on its surface, appears to pass title but fails to do so.
intentional infliction of emotional distress
1. intentional or reckless conduct
2. extreme and outrageous conduct
3. causal connection
4. severe emotional distress
possibly disabling
intent
purpose or substantial certainty is sufficient for
O'Brien v. Cunard
woman gets smallpox vaccine. did she consent?
2-612
"Installment Contract"; Breach
Security Stove v. American Railways
key example of reliance interest. Plaintiff got cost of trip restored after essential package was late.
restitution damages
compensates plaintiff for any benefits it gave to defendant- to prevent unjust enrichment
come to the nuisance
moving into a position to be annoyed
2-107
goods served from realty
2-102
scope of article 2
Hawkins v. Mcgee
Implied contract through a doctors guarentee.
A boy has a burnt has, Doctor makes a promise to make the hand perfect, hand ends up worse. (remedy Expectation damages- difference between a burnt had and a perfect had)
1-106, expectation damages
location of remedy definition of UCC and remedy-based goal of UCC
predominant purpose Test
Ct. test to determine if the predominant purpose of the transaction was to sell goods or services. If goods, then Article 2 applies to the whole transaction. If services, then Article 2 does not apply to any part of the transaction, not even the goods portion.
the Gravaman test
looks to that portion of the transaction which the complaint is based, to determine if it involved goods or services.
reasons against specific performance
Efficient breach: breach will benefit both parties
Quality control: difficult for courts to police the performance
Transaction cost theory
if restitution is too meager and expectation too much, give reliance damages to put plaintiff back in the position before the contract was made for nosejob
nuisance
firms seek to economize on transaction costs.
IT lowers market transaction costs.
negliegent
"You cannot be intentionally _________"
Spivey v. Battaglia
Rule road legal concept including anything that disturbs the reasonable use of%tend health or is offensive
no
do we need a motive in intentional torts?
harmful/offensive
battery: intent to cause ______________ contact, and such contact has to take place.
adverse possession
1. actual possession-- actual use... fulfilling type of property.
2. open and notorious... not done in a corner... world on notice
3. adverse/hostile/under claim of right... not with owners permission. treat it as your own property

I: "Good faith" test
4. exclusive (no one else is doing it too)
usage and possession


5. continuous

-no abandonment and returning
gravity of harm
balancing test
In determining the gravity of the harm from an
intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:
(a) The extent of the harm involved;
(b) the character o
permanent damages
Awarding of compensation for the total economic loss caused, both present and future. See Boomer v. Atlantic Cement. In this case, permanent damages were awarded in lieu of an injunction to stop an ongoing nuisance.
spur v. del webb
OUTCOME: The court affirmed the judgment permanently enjoining defendant, holding that the feedlots were both a public and private nuisance. However, plaintiff, having brought people to the nuisance, was ordered to indemnify defendant for his damages proximately caused by the injunction. The case was remanded for further proceedings on damages issue.
l. albert v. armstrong
the case of the losing contract and motor. Promisee may recover his outlay in preparation for the performance, p'or may reduce it by as much as he can prove p'ee would have lost
2-715
buyer's incidental and consequential damages
reliance
restitution interest is a subset of _____ interest, which is a subset of expectation interest
expectation interest
We don't want to use ___________, if we have a bargain where breach helped the buyer.
reliance interest
makes you as good as if the contract had been never made.
restitution interest
prevents unjust enrichment of the breaching party
state zoning enabling act
Gives cities the right to zone. enacted in all 50 states.
katko v. briney
owners of farm house put a spring gun. trespasser was injured. Don't have the right to use deadly force to protect against your property unless you believe you will suffer immediate severe bodily harm if you don't discussion: can we ever use spring gun?
proportionality
rule about defense of property.
fact
the lack of a fact may be an important _______.
2-606
what constitutes acceptance of goods
2-601
buyer's rights on improper delivery
2-608
revocation of acceptance in whole or in part
purpose of restitution damages
desire to prevent unjust enrichment or desire to deal with breach when expectation aren't available
full performance
claiming restitution after breach gives us a wider range of options if there isn't ________________.
specific performance
breach before performance can entitle you to ______ _____ under certain conditions
negligence
1.Duty
2. Breach of the duty
3. causation
4. damages
zoning regulations
held constitutional in Euclid
peevyhouse v. garland
If breach pertains to a matter only incidental to the main purpose of the contract, and performance would be disproportionately costly, the proper measure of damages is the diminution in value measured
quantum meruit
Literally, as much as he deserves—an expression describing the extent of liability on a contract implied in law (quasi contract).
private necessity
A defendant invades property to protect an interest of his own. Three features:
1) Private necessity defendant is liable to pay actual/compensatory damages for harm done to the property.
2) No liability for nominal or punitive damages.
3) As long as the emergency continues, defendant can remain on plaintiff's land for a position of safety. He has the right of sanctuary and cannot be ejected or expelled (owner can actually be held liable for ejecting you!).

NB: If defendant acts out of private necessity, and protects plaintiff's own property, no liability.
public necessity
D invades P's property in an emergency to protect the community as a whole or a significant group of people. Property must contribute to emergency
Absolute defense. No liability can attach.
trespass
privilege as a defense is the difference between no _______ but compensation and ________ with compensation?
justification
catch-all defense for intentional torts, according to prof. Nuñez
negligence
Rule:
1. duty to act in some way
2. breach of that duty
3. causation
a. cause in fact
b. proximate cause
4. damages
reasonable prudent person
standard by which the conduct of others is measured, hypothetical person who behaves with full knowledge and alertness
delair v. mcadoo
tire blew out and hit another person. Should have known the tire was worn as a reasonable person would have known
inferences
we need to scrutinize our ___________ which we draw from our facts.
F. supp
the opinions of federal distrcit judges are published in this federal supplement
hawkins v. mcgee
Implied contract through a doctors guarentee.
A boy has a burnt has, Doctor makes a promise to make the hand perfect, hand ends up worse. (remedy restitution- what he paid for the operation)(Expectation damages- difference between a burnt hand and a perfect hand)
Kelo v. New London
-the taking of private land for economic development, and particularly for private sector development, has come under public scrutiny since the supreme court decision,
-Eminent domain case: Local governments may force the sale of private property and make way for private economic development when officials decide it would benefit the public.
fifth amendment
eminent domain amendment
zoning estoppel
stopping a government from prohibiting land use once landowner has changed to conform to standard
Hodges v. Carter
fire destroys building and insurance company refuses to pay. Lawyers followed the local custom and mailed them notice there was no statutory authorization for service by mail though and the insurance companies moved to dismiss. No negligence bc lawyers were acting in good faith, standard was to mail and hasn't been challenged ever.
yes
Are children doing traditional childhood activities held to the same negligence standard as adults?
no
are children doing childhood activities held to the same standard as adults
profession
a reasonably prudent professional is held to the standards of his ______ and his knowledge, training, skill
conduct, casual, emotional
Intentional infliction of emotional distress:
1. intentional or reckless conduct
2. extreme and outrageous ________
3. _______ connection
4. severe ________ distress
possibly disabling
respondeat superior
an employer is vicariously liable for the behavior of an employee working within his or her scope of employment
no, yes
are insane person typically held to a different standard? is there a minority rule?
B10.7.3
capitalization
-supreme court
-full name of court
-court it should be adressed to
vested right
A right which the law recognizes as having accrued to an individual by virtue of certain circumstances and that as a matter of constitutional law cannot be arbitrarily taken away from the individual.

EX: A government makes zoning changes that affect development projects in progress. The developer may argue that it has acquired a vested right in the prior zoning, or can use the theory of estoppel.
substantial reliance tests
1. set quantum test--change position beyond certain point--project-based
2. proportionate test-- % completed v. % left --spend a substantial amount-- monetary
3. balancing test-- public v. development interests (physical construction)
special exception
A land use explicitly permitted by a zoning ordinance but subject to certain limitations
hardship variance
An exception to the application of a zoning ordinance for lots that, because of size, topography, or other physical limitations, do not conform to the ordinance requirements for the zone
In Re: worldcom
Michael Jordan is not a lost-volume seller. did not want new contracts
informed consent
consent by a patient to undergo a medical or surgical treatment or to participate in an experiment after the patient understands the risks involved. Full disclosure of effects and side effects must be provided. To give consent, the person must (a) demonstrate the capacity to decide, (b) do so voluntarily, and (c) have adequate knowledge of all salient aspects of the treatment.
utility of conduct
balancing test
In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:
(a) the social value that the law attaches to the primary purpose of the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.
rules of nuisance
1. gravity of harm v. utility of conduct is an issue
2. Harm is serious-- the $ burden doesn't destroy
3. Harm is severe--defendants win
Surocco v. Geary
-Fire marshal blew up P's house to prevent fire from spreading.
-D not liable at all, even though it didn't stop the fire.
Surocco v. Geary
performing otherwise illegal act due to circumstances
quote from 2-606
"Determination of substantial impairment is made from an objective view or from the buyer's subjective view, considering the particular needs and circumstances
assault
intent to cause a harmful or offensive contact or imminent threat of harmful/offensive contact
battery
assault with contact
consent
a. Express ________ to an intentional interference w/ person or property is a complete defense.
offer, acceptance, consideration
three things needed to form a contract
contract
A promise or a set of promises for which the breach of the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
promise
a manifestation of intention to act or remain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.
bargain
formation of contract requires a
meeting of the minds
Mutual assent or agreement between the parties to a contract regarding the substance of the contract.
offer
manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it.
revocable
offer is usually ____________ until accepted.
time
valid contracts are often made which do not specify the ____ for performance. however, we want the amount of _________ to be reasonable for single performance
power of acceptance
The offer must be communicated to the offeree; only the offeree has the _______ __ _________
rejection
a refusal of an offer by the offeree that brings the offer to an end.
acceptance by performance
Requires that at least part of what the offer requests be performed or tendered.
acceptance by promise
Requires offeree complete every act essential to the making of the promise.
42-43
revocation in restatements
impact, taking, expectation, severe
penn state balancing
1. Economic _______
-investment-backed expectations
2. nature of the _________
-physical invasion or something else?
3. not __________, but property.
4. how __________ a harm?
essential nexus
-relates to the appeal, i.e., individual can enlarge the house without providing access to the beach,
-Refers to a connection. Is the means of restriction justifiable in light of the right being restricted?
virtue
infinite ______ of his atoning sacrifice
warranty of fitness
seller warrants by implication that the goods will be fit for the purpose for which they are to be used
duty to disclose
Does one party have superior knowledge? Is the fact in question material? Does the party of superior knowledge have reason to believe that the other party has no other means of discovering the material fact? If the answer to all three of these is yes, then there is a _______ __ __________.
caveat emptor
"let the buyer beware"
apply, protect, effect
1. Does the statute ________?
-what harm is the statute designed to prevent?
-What is the text of the surrounding statutes?
-Other context signals.
Who is the statute is designed to _________?
Appropiate to use statute
i. Statute broad?
ii. Disproportionate damages
iii. consistent with the common law
iv. Causation (Bar brawl--was he already intoxicated)
2. What is the procedural _______ of the statute?
rebuttable presumption
Used in setting the statute as the standard of care. A presumption that is not conclusive and that may be contradicted by evidence. A presumption that applies unless proven inapplicable by the introduction of contradictory evidence.
mere evidence
use of statute violation law. looks at the evidence
direct force
Spano did away with _______ _________.
fault
you should have done something differently
causation
if it caused this, we have...
snowball
we don't send people to trial when there's not a chance of a _________ in Hades
exaction
steps for __________
1. essential nexus ie, exact relationship
2. rough proportionality
essential nexus
steps for exaction
1. ________ _________ ie, exact relationship
2. rough proportionality
Strawn v. Canuso
DUTY TO DEFECT DISCLOSE WHERE
o Known to seller, who is professional
o Materiality affects value
o Not readily observable (off-site)
o Not known to buyer, not real estate owner, remanded to trial court
implied warranty
an unwritten guarantee that the good, land or service is fit for the purpose for which it was sold
race statutes
whoever records first wins, regardless of the timing of transactions. No BFP protection
notice statutes
whoever gives notice first wins, regardless of the timing of transactions.
race-notice statutes
must record first AND have no notice of prior interest to win
actual notice
notice that has been expressly given and is known to a party. actually see the document.
constructive notice
the legal presumption that information may be obtained by an individual through diligent tile searching, properly recording documents in public record, actual document
keywords
look for __________ when distinguishing laws between notice, race and race-notice
common law
when statute doesn't work, look at _________ ______. (in race-notice)
A
O conveys to A, who fails to record. B has notice. O conveys to B, who records. who wins under race-notice?
B
O conveys to A, who fails to record. B has no notice. O conveys to B, who records. who wins under race-notice?
A
O conveys to A, who fails to record. B has no notice. O conveys to B, who fails to record. who wins under race-notice?
A
O conveys to A, A records. B has no notice. O conveys to B, B records after A. who wins under race-notice?
Inquiry notice
Notice the law presumes a reasonable person would obtain by inquiring into a property
property
you do not buy a __________ unless you know the full rights of the lesee
notice
notice is _________, be it actual, constructive, or inquiry
res ipsa loquitor
"The thing speaks for itself" ie.The accident is of the type that usually does not occur w/o negligence. requires exclusive control and things don't happen outside of negligence
Mcdougald v. perry
Tire case flying behind. When invoking res ipsa, the plaintiff does not need to eliminate all other possible causes, but needs to show that negligence is more likely than not the cause of the harm; the jury can draw on common sense in deciding whether an event normally occurs in the absence of negligence
exclusive, ordinarily
Res Ipsa applies when it is in the _________ control of the defendant, event does not ____________ occur without negligence
T
you could take res ipsa or theory of negligence to trial. In some jurisdictions, you can't take both T/F?
larson v. st. francis hotel
Ped walking outside of hotel and got hit by armchair thrown out of window. Hotel does not have exclusive control over armchair thus no res lpsa loquitir.
legaltrac
Law review/law journal index--1980 to present
Wilson ILP
Law review/law journal index--1982 to present and retro
law reviews
legal periodicals published by a law school, bar association, or academic organization with articles on legal subjects such as court decisions and legislation.
marvin v. marvin
can unmarried cohabitants contract into the rights of marriage? courts concerned that contract may rely on sexual services, therefore look like prostitution; Court is willing to say that living together as a couple may show intent to divide assets or show an implied contract and reliance
implied contract
a contract in which the terms are not expressly stated but can be inferred from the actions of the people involved and the circumstances
express contract
a contract statement that may be oral or written
quantum meriut
You are entitled to be paid the reasonable value of your services and material in a contract action when you have completed the work and the buyer refuses to pay because of some "minor" difference in what was contracted for. Not a contract.
consideration
Something of value that gets a person to enter into a contract; owner of property promises to convey marketable title and the buyer promises a certain amount of money
legal form
Set of statutes that make a "box" that situations can fall into. examples: marriage, wills, trusts
legal forms
marriages, trusts, wills, are examples of ____________ ________
functions of forms
cautionary function -warning
Evidentiary function -evidence that there was a contract
challenging function --certain transactions should go in a certain way. separate rules
facilitating function -- no need to reinvent the wheel
statute of frauds
State law requires certain instruments, such as deeds, real estate sales contracts and certain leases, to be in writing to be legally enforceable
hamer v. sidway
rich uncle; Promise: trust: key issues. timing limitations. stetting up trust forms
cestui que trust
beneficiary of trust
promise
essence of consideration is a return _____ or performance
doctrines
the doctrine of consideration is many __________. There is not just one rule.
consideration
some argue that ______________ must benefit the person who offered the contract
gift
as the value of consideration goes, it is less likely we will consider it a _______.
preexisting duty
A promise lacks consideration if a person promises to perform an act or do something he or she is already under an obligation to do.
matchless
As we commemorate the birth of Jesus Christ two millennia ago, we offer our testimony of the reality of His ________ life and...
fifty-fifty
with a burden shift, the winner at the _____-_____ level is the plaintiff, not the defendant
inference
three procedural jury instructions for res ipsa

1. _____________ -- there could be negligence
2. presumption --plaintiff has to prove it is more likely than not, jury starts out assuming negligence
3. shifts the ultimate burden of proof
presumption
1. inference of negligence-- jury is allowed to find negligence
2. __________ of negligence-- jury is expected to find negligence, burden on plaintiff
3. shift of burden of proof jury is expected to find negligence, def. has burden of proof
causation rule
"if the breach hadn't happened, accident wouldn't have occurred"
causation
1. cause in fact
2. proximate cause
breach, damages
causation links ________ with ____________.
gentry v. douglas hereford ranch
negligence in steps not shown to lead to man stumbling key issue: possible causation. Key idea: burden of proof is on the plaintiff for causation
cause in fact
"If it wasn't for you your father would still be alive"--Scar
narrow
Ybarra is a very _______ ruling. (multiple people, unconscious, etc.)
pepsi commercial
Ad: propoganda or no? Is there a right to the Harriet Jet
equitable estoppel
Legal principle that precludes a person from claiming a right or benefit because that person made a false representation to another person who relied on the untruthful statement to his detriment
proximate cause
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability.
Deus ex machina
any active agent (ie court) who appears unexpectedly to solve and insoluble difficulty
life estate
(law) an estate whose duration is limited to the life of the person holding it
fee simple determinable
An estate which has been created to exist only until the occurrence or nonoccurrence of a particular event. Returns automatically.
leasehold
land or property held under a lease (rent)
fee simple subject to a condition subsequent
An estate which is subject to a power in the original grantor, or the grantor's heirs, to terminate the estate upon the happening of an event. Thus, continued possession is not wrongful until and unless the holder of the power of termination has exercised it.
defeasible fees
present (property) interests which are of a potentially infinite duration which can be terminated by the happening of a specified event (condition).
more likely than not
torts liability is based on ____ _______ ____ ___
Daubert Test
Trial Judge is the gatekeeper of reliable Science: Reliability: 1) Was it tested and how, 2) Was it published or peer reviewed 3) What is the rate of error? 4) general acceptance in the community. (Not exclusive) Relevance: if expert testimony is true, would that matter?
fee simple subject to executory limitation
"A To B but if X event occurs, then to C." Third party--> the third party has a shifting executory interest. Unlike FS Determinable and FS sub. to cond. sub., the future interest is divested to a third party. reversion.
Davis v. Jacoby
Guy asked friends to care for wife, they did after he died. Suicide. will contradicted. Court considered bilateral K before death (promise to take care). If unilateral, acceptance only by performance, and offer revoked at death. RAE: Why not allow option post death?
reversion
an interest in an estate that reverts to the grantor (or his heirs) at the end of some period (e.g., the death of the grantee)
remainder
the rights to property after present interest expires
vested interest
an interest in which there is a fixed right to present or future to land. immediate knowledge of who that will be.
adverse possession
inquiry notice and ______ ____________ have similar requirements
fee simple determinable
To B so long as there is a smiley face.
possibility of reverter
The right retained when a fee simple determinable is granted.
right of entry
The right retained when a fee simple on condition subsequent exists; also referred to as the power of termination. Back to court. Not reversion
fee simple subject to a condition subsequent
"but if"
"however if"
"provided that"
fee simple determinable
"as long as/so long as"
"until"
"during"
"while"
fee simple subject to executory limitation
any condition, but than it goes to 3rd party automatically
executory interest
Future interest created in third-party transferee which is not a remainder and which takes effect by cutting short some interest in another person FSSEL
future interest
person's present right to an interest in real property that will not result in possession or enjoyment until some time in the future, such as a reversion or right of re-entry
grantor
interests in ________
a. reversion
b. possession
c. right of entry
transferee
interests in __________
a. remainder
i. vested (absolute right)
ii. contingent (having condition)
b. executory interest (inheritance)
vested
fixed and absolute and without contingency. vested now, future intereszt
contingent
A to B for life, than to heirs of C vested or contingent?
vested
A to B for life, than to C vested or contingent?
contingent
A to B for life, than to C if she survives B. B is still alive. vested or contingent?
contingent
A to B for life, than to C if she survives B If not, to D. vested or contingent? (remainder)
vested subject to complete defeasance
a remainder that can be completely lost if the terms of vesting are not met; not automatic
vested
if to existing children, it is ________ subject to partial divesture. if heirs, it is not _______.
subjectivity
"meeting of the minds" is not intended to introduce ______________.
promissory estoppel
a promise enforceable without consideration e.g. Hoffman v. Red Owl. tied to reliance
Kirksey v. Kirksey
Brother-in-law Δ promised Π a place to live after the death of her husband (Δ's brother). She abandoned her home in reliance on that promise and moved to that home. He subsequently kicked her off. Court held that the promise was a gratuity and therefore not enforceable. Issue: was moving 60 miles consideration?
motivations for enforcing contracts
1. offer-and-acceptance
2. estop people from not keeping promises.
90
Restatement __ states that there should be promises enforced if enforcement prevent injustice. (promissary estoppel)
negligence
two "but for" causes does not exclude a single party from being held liable for __________.
substantial factor test
a standard adopted in several states in place of proximate cause; in jury may hold a defendant liable in tort if it finds that defendants conduct was a major cause of the injury in question
summers v. tice
When two parties are negligent and an injury results, the parties will be held jointly and severally liable even if only the negligence of one party could have been the cause of the injury; burden shifts to the defendants to prove by a preponderance of the evidence that their negligence was not the cause of the injury
enterprise theory
suing whole market and showing working in cohort
sindell v. abbott laboratories
DES drug, gave pregnant woman for morning sickness, diziness, caused deformed children and caused cancer developed years later

THe idea of determining liability on the basis of market share of all producers came from
131
restatement ___ ( 2d, contracts) is about statute of frauds.
discussion of Davis v. Jacoby
trust; unilateral vs. bilateral contracts; partial performance. details of promise. travel; will you mail me?
"What was Rupert thinking?"
unilateral contracts--do we want performance
unilateral contract
-a contract that contains a promise by only one person to do something, if and when the other party performs some act.
-a one-sided agreement whereby you promise to do (or refrain from doing) something in return for a performance (not a promise)
bilateral contracts
In case of doubt, courts use __________ ____________ instead of unilateral.
option contracts
1. promise which limits power to revoke
2. made under seal, by extra consideration, reliance
45
restatement __:Where an offer invites an offeree to accept by rendering a performance, an option contract is created when the offeree tenders or begins the invited performance.

IE. by commencing climbing a flagpole, yo make an option contract
consideration
difference between unilateral contracts and promises.
return promises
difference between unilateral and bilateral contracts
Alsop v. Montoya
father's will overturned in the name of intent and economic efficiency
balancing test on selling restraint
1. scope of the restraint (few restrictions or total restrictions?)
2. method of restrain--disabling, forfeiture, promissory
3. nature of the interest restrained
invalid
a disabling life estate is _______ under fee simple
vested interest
(law) an interest in which there is a fixed right to present or future enjoyment and that can be conveyed to another
latches
a delay ( in pursuing or enforcing a claim or right) can be so long that the person against whom you are proceeding is unfairly hurt or prejudiced by the delay itself. Latches is an equitable defense used when a plaintiff delays unfairly in starting a lawsuit
affirmative waste
Life tenant actively chages the property's use or condition in a way that substantially decreased the property's value
permissive waste
(a) does not involved a voluntary act. It involves inaction. A life tenant has to act reasonably to protect the land from damage. If he fails to take reasonable steps, he can be sued.
EXAMPLE:
Life tenant receives a piece of property in Florida in an area where hurricanes are not uncommon. There are special storm windows that are to be placed on the structure during hurricane season to provide protection should a hurricane hit. Life tenant fails to install the storm windows, a hurricane hits and damages the property. This would be _________ _________.
ameliorative waste
1. Life tenant must not engage in acts enhancing property's value UNLESS all future interest holders known and consent
2. NY: life tenant may make reasonable improvements unless remaindermen object
Bartolone v. Jeckovich
minor initial injuries lead to schizofrenia--couldn't body build: judgement: causation based on precedent-- this led proximately to schizofrenia, based on past cases --Introduction of "take them as you find them" theory.
eggshell plaintiff
You do not have it intend or be ablee to forsee the plaintiffs injuries. - *you take the plaintiff as you find them including all their frailties. firm rule. only personal body and skull
negligence, intentional
the eggshell plaintiff theory applies in both ___________ and _________ torts
vested interest subject to partial divestment
O to A for life, then B's children. 1 child is born. there is a ________ __________ ________ ___ __________ __________.
contingent remainder
Remainder is created in an (as yet) unascertained person OR Is subject to a condition precedent (or both).
no
if A intends to shoot B but mistakes B for P. A misses P. B is not in the area. Do we need transfer of intent?
substantial factor test
a standard adopted in several states in place of proximate cause; in jury may hold a defendant liable in tort if it finds that defendants conduct was a major cause of the injury in question
charities, reliance
promissory estoppel started with _________, and requires _________ in most cases.
chattels real
Real estate interests less than fee ownership, such as tenant leasehold interests and mortgages, are known by....
term of years tenancy
A to B for 12 months, to commence January 31, 2010
periodic tenancy
A to B from month to month, commencing March 12, 2010
Tenacy at sufferance
wrongful continuing of possession
facts, liability
cause in fact is based on _________, proximate cause is based on ___________ analysis.
palsgraf v. long island r.r. co.
fireworks on train tracks. scale. When the foreseeable risks of a defendant's acts do not include injury to the specific plaintiff, than the defendant is not liable to the specific plaintiff because the defendant has not been negligent as it pertains to the P. A defendant's negligent act involves a zone of danger (risks) for which injury is reasonably foreseeable. When a plaintiff is outside of this zone of danger, no proximate cause exists for the injury.
validity of restraint
balancing test for determining _______ __ __________

1. Scope of restraint (total or partial)
2. Method (disabling - cannot sell, forfeiture - money from sale goes to someone else, promissory - contract enforced)
3. Nature of interest (life estate, fee simple) See chart on pg. 625)
tenancy at will
An occupation of space for an indefinite period which can be terminated by either the lessor or lessee at any time.
British Rule
if tenant has been denied possession, he/she can rescind unilaterally
partial actual eviction
o LL either physically using or authorizing someone else to use or blocking you from using part of the premises.

o Its partial because you cannot use part of the premises.

o Traditional remedy:
• If its NOT trivial you still don't have to pay rent then.

o Current Remedy:
• States will pro-rate or give partial abatement.
constructive eviction
action by a landlord that compels a tenant to leave the premises (as by rendering the premises unfit for occupancy)
actual eviction
the physical ouster of a tenant from the leased premises
partial constructive eviction
o Landlord causes a specific are of the home to be virtually unlivable, although they may not have blocked it off.

o You don't need to leave but you have to have left the area in question (East Haven)
penalty
regardless of the type of eviction, the ____________ is similar
warranty of habitability
Implied warranty in residential leases. The landlord covenants by implication that the premises are suitable for human occupancy. The implied warranties are found in the statutes and implied by common law.
contract, goods, services
_______ law is used for leases, because ________ and __________ are heavily involved with leases
repairing property
remedies for landlord not __________ ______________
1. rent withholding
2. abatement
3. repair and deduct
hoffman v. red owl stores
Hoffman owned a bakery and contacted Red Owl to inquire how to start one of their franchises. Hoffman told Red Owl he only had $18,000 available to invest and Red Owl informed him $18,000 would be sufficient to set up a Red Owl store. ended up costing $26,000, famous promissory estoppel case
Governance provision
provision in contracts saying who will make future choice about a long-term franchise
duty, proximate cause
judge Cardozo's Palsgraf opinion is mostly based on _______, but the reasoning is fairly similar to ____________ _________
proximate cause, duty
in Palsgraf, Judge Andrews puts forseeability in _______ _________, Cardozo puts it in _____, and limits duty to the plaintiff.
intervening cause
the cause that either interrupts a chain of events or substantially contributes to a result
superseding cause
an independent cause of injury or loss that insulates or relieves the defendant from liability for his or her negligence
intervening
question to ask in _______ causes: when we read the first part of the facts, can we see what will happen? (we do not have to forsee what the exact ________ cause will be)
intervening
In negligence and forseability: in criminal cases, you have to forsee _________ cause.
statute of frauds
State law requires certain instruments, such as deeds, real estate sales contracts and certain leases, to be in writing to be legally enforceable
statute of frauds
Things needed in writing come under __________ ___ ____________
reliance
promissory estoppel typically uses _________ damages
franchisor
the parent company of a franchise agreement that provides the product or service
franchisee
a person who buys a franchise
at will
franchise agreements are not terminable __ _______.
balfour v. balfour
Husband worked overseas. Wife stayed home and paid until they reunite. Later divorced. Cannot sue for payment, as agreement made whilst in amity, so not intended to be legally binding.
statute of frauds
if part of a contract is to be performed in over a year, it falls within the ________ ___ __________
139
restatement ___ 2d contracts states we can enforce contracts where the statute of frauds applies, method similar to promissory estoppel
consideration
when comparing consideration and statute of frauds, easier to get past the ________________ requirement
tips for torts final
be CAREFUL about what the question asks
Put it all together. Apply the fact to the rule.

no points for case names and facts

when there are multiple approaches talk about both, but
cases, facts
in contracts, but not torts/property, ______ and ______ are relevant
casual nexus
which issue caused what happened?
act
good Samaritan laws protect you if you do _____, but don't require you to ___
rent control
a price ceiling placed on rent
injury
if you cause an ________, you have a duty to act
nature, public
Rule in J.S. (sexual abuse case)
1. ______ of harm
severity
forseeability
2. preventability
3. comparative interests and relationshipsa
4. ______ policy & fairness
protect
under common law rule, duty to _______ requires a special relationship.
tenant, landlord
permissive waste liability is either to the ________ or ____________, depending on the jurisdiction
summary proceedings
Action for removal of T may be brought when demand for rent has been made and he doesn't pay or where he stays longer than lease without permission. tends to take time
self-help
A landlord doesn't have the right to _______-________, for instance, landlord locking out tenant.
berg v. wiley
The common-law rule that a landlord may rightfully use self-help to retake leased premises from a tenant in possession without incurring liability for wrongful eviction provided two conditions are met: (1) The landlord is legally entitled to possession, such as where a tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause; and (2) the landlord's means of reentry are peaceable. LAW DISFAVORS SELF HELP!
landlord
discussion of Berg: do we have to let the ______________ wait? how can we balance these rights with the rights of the tenant?
statutory lein
statement of property you want if lease/property contract defaults.
cotenancy
when two or more persons hold concurrent rights and interests in the same property.
tenancy in common
Form of co-ownership in which each owner holds an undivided interest as if he or where were sole owners; individual owners have right to partition, right of inheritance
joint tenancy
Co-ownership of real estate; when one of the owners dies, that interest goes to the remaining owners (right of survivorship)
tenancy by the entirety
A special joint tenancy between a lawfully married husband and wife, which places all title to property (real or personal) into the marital unit, with both spouses having an equal undivided interest in the whole property. In essence, each spouse owns the ENTIRE estate.
Unity of interest
tenants must have identical interests in share; so a joint tenant cannot have a one-fourth interest
unity of title
States that the joint tenancy interests were created in a single conveying instrument.
unity of possession
The right of each tenant to the possession and use of the whole property. (Joint tenants and tenants in common.)
Reletting
finding a new leasee after breach of first; original leasee has to cover difference, is still responsible for the account
possession
Each cotenant is entitled to full ___________ under joint tenants and tenants in common.
no, tenancy in common
A,B and C have a joint Tenancy, B sells to X. is there now a joint tenancy between A and C? if not, what is it?
unity of time
States that the joint tenancy interests of the joint tenants must have been acquired at the same moment.
die
liens, leases ____ with the owner in joint tenancy
firm-specific investments
Investments made by employees that have more value in a particular firm than in an alternative firm.
Think: Firms can treat employees with a high firm-specific investment badly because they are less likely to leave the firm.
contract
Promissory estoppel is not a __________!!
implied-in-law
argument that stated that legal obligations are inferred from merely having an employment contract
wagenseller v. Scottsdale memorial
I: Is public policy a good reason to prevent firing? How about a personnel policy manual? how about a good faith contract (AZ)
investing, incentives
some say employees are ______ in the company and contracts should not be at-will, others say at-will employment provides _________ for good performance
exceptions for at-will firing
1. Public policy
2. handbook
3. "Good faith and fair dealing"
(4. promissary estoppel)
illegal contract
Contract or promise whose performance, formation, or object is against the law. typically not enforceable.
legal, unjust enrichment
courts distinguish between contracts for murder/theft, and illegal contracts, whose underlying purpose was illegal but the top activity was _______. They use _______ _____________ as justification
physical damages
there is no recovery for economic damages without ________ __________.
physical damages
there is rarely recovery for emotional damages without ________ __________. If, however, there are _____ ___________, such as loss of weight, there can be recovery, even if there wasn't physical impact.
informed consent
duty to tell medical risks that Reasonable prudent patient would want to know
breach
causation-- would not have taken surgery if they had told risks
actual damages
special relationship,
you need a _________ ______________ for an affirmative duty
cause
if you ________ the harm, you have an affirmative duty to mitigate
helping
there is a duty to finish _____ someone if you start (affirmative duty)
nuisance tests
go over all 5 possible ____________ ________
1. gravity of harm v. utility of conduct
2. serious conduct
3.harm is severe and greater than plaintiff should bear
4. physical invasion
5. community norms
nuisance
if there is an economic deprivation taking, you have to check if it is a ___________.
139
if you rely on a contract to your detriment, look at restatement ___ (2d)
at-will
Exceptions to __-_____ employment
1. public policy
2. handbook
3. implied in law/ good faith
choice
The importance of _________ leads us to question whether contracts with children or mentally ill people are enforceable
Ortelere v. teachers retirement board
Ortelere took leave of absence because she had a nervous breakdown. She changed her retirement plan while she was mentally ill. A psychiatrist testified that she was incapable of making voluntary rationale decision because of the condition she was suffering from. She has originally elected a plan that that paid less but gave more to beneficiary but while suffering from mental condition she changed plan to one that paid more during life but no benefits after death. After she passed away, her husband brought action against the school. The court held that the since the school board had knowledge of the condition because she was on a leave of absence and was examined by a doctor provided by the school the changes made were void. The ruled in favor of the husband
(res.15)
yes
can a 17-year-old disaffirm a contract based on age?
licensee
A person who enters the land of another with the owner's express or implied consent, but it's for his own benefit rather than the benefit of the owner (sales person).
invitee
One who is expressly or impliedly invited onto the property of another in order to further the party's economic interest. They enter the land with the express or implied consent of the land owner.
trespasser
An individual who intentionally goes onto the property of another without permission or any legal right to do so.
rules for emotional distress
DiVictim:
1. physical impact
2. physical manifestation-- weight loss, etc.
assume reasonable loss
diagnosis of depression
-- diagnosis of very specific mental illness (some jurisdictions)
---------
Observer
3. dillon
--close to accident
--closely related?
--no link
4. Thing rule
- abnormal response
-closely related
and
-present at scene
Abnormal, related
emotional distress
- ______ response
-closely ______
and
-present at scene
tenant in common
A form of ownership where two or more people hold title on the same property. Each person's interest is held in severalty and each person retains the right to will away their interest.
invitee
obligations to _______--warn of known hidden danger. take efforts to keep premises reasonably safe
licensee
obligations to _______--warn of known hidden danger.
Carr v. Deking
• A co-tenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without joining in the lease. You are subject to the lease
joint tenancy, tenancy in common
leases die in _____ ________, but not in ________ __ __________.
rent
cotenants don't pay _________ unless there was an ouster
ouster
the act of ejecting someone or forcing them out
easement
(law) the privilege of using something that is not your own (as using another's land as a right of way to your own land)
profit á prendre
A profit (profit a prendre), a more specialized type of easement, is a non-possessory property right to enter upon another's land and remove something.
covenant
A solemn agreement or pact. In a covenant there are always promises on one side and often obligations on the other. Covenants are usually signed and sealed, sometimes by strange acts.
Appurtenant
-relating to something that is added but is not essential,
-Attached to the land (such as a house) or the deed (such as a recorded easement).
statute of frauds
required to be in writing under _______ ____ _________
o Marriage: Contract made upon consideration of marriage.
o One-Year: Contract that cannot be performed within one year from its making.
o Land Contract: Contract for the sale of an interest in land.
o Executor-administrator: Contract for an executor or administrator to answer for the duty of his decedent.
o Goods in Excess of $500: Contract for the sale of goods in excess of $500.
o Specially manufactured goods not suitable for sale to others.
partition, forced sale
_________ or ________ _______
1. serious $ injury
2. respective financial abilities
3. location, character
4. size & utility of shares
5. sentimental reasons
partitions
there is a presumption towards ______ instead of a forced sale
Equitable servitude
A covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. The usual remedy is an injunction, not damages.
gross
related to a person (property-Easements)
easement
railway becomes a bike path; what is the scope of the ___________?
goodwill
in Fullerton Lumber v. Torborg, it was ________ that was taken
maximum recovery rule
1. what the judge believes a reasonable person could find at maximum for an award.
a. If this is violated, there are a few options:
i. can set aside the verdict and grant a new trial,
ii. could do so only on damages, or remittur
invitee
a ________ has to discuss his own personal or own business interest
T
you can transfer during one visit from Trespasser to Invitee to licensee T/F?
attractive nuisance doctrine
A doctrine treating a child as a licensee, or guest, rather than a trespasser on land containing an artificial and harmful condition that is certain to attract children
artificial conditions highly dangerous to trespassing children
1. know children are likely to trespass
2. know items poses unreasonable risk of death/bodily harm
3. children don't appreciate risk
4. B< P*L
5. failed to exercise reasonable care
T
CA exception: no categories of licensee, trespasser or invitee. Replaced with n ormal negligence analysis T/F?
understand, act
limits in enforceable contracts: ability mentally to ______________ or to _______.
F
you could take negligence by statute or theory of negligence to trial. In some jurisdictions, you can't take both T/F?
yes
If you don't drink, I will give you $$. you are 23. unilateral contract or no?
no
If you don't drink, I will give you $$. you are 19. unilateral contract or no?
T
Intentional torts don't have actual damages required, but you do have nominal damages T/F
assignable, death
easements in gross are __________ but terminate upon _________.
no recovery
common law rule on contributory negligence
last clear chance
Defendant was negligent and the plaintiff, through her contributory negligence placed herself into a position of either helpless or inattentive peril. Defendant must be aware of the plaintiff's peril under a duty to discover the plaintiff.
can
if defendant had last clear chance, Plaintiff _____ recover.
contributory, comparative
examples of negligence defenses are ____________ negligence and __________ negligence
portion of damages
common law rule on pure comparative negligence
recovery of portion as long as fault <=50% or <50%
rule on modified comparative negligence
recover only small %s.
rule on slight comparative negligence
defendant
you compare plaintiff's negligence to all of the _________'s negligence combined
appurtenant
courts usually favor _____________ easements over easements in gross.
commercial
easements in gross are usually ___________
stoner v. zucker
Defendants were granted a license by Plaintiff to enter Plaintiff's land and construct an irrigation ditch, and thereafter Plaintiff revoked the license and sued to have Defendants adjudged trespassers. (D) Needed and proceeded to go onto the land to maintain the ditch.

Issue. Is the license revocable at the will of Plaintiff?

Held. No. Judgment affirmed.
The court recognized that, generally, one could not enforce an easement, which is based on oral agreement alone. However, the court recognized that estoppel was valid. Easement by estoppel
easement by estoppel
1. change in position due to belief of non-revocability of license
2. change in position due to belief there was an easement.
easement by implication
1. use must be apparent, visible, reasonable
2. permanent use intended
3. necessity
negative easement
an easement that prohibits a property owner from doing something that affects the property of another; a solar easement
economic duress
consists of threats to a person's business or income that cause him or her to enter a contract without real consent. bankruptcy is duress, distress is not, but job-based could be.
tunkl
California Supreme Court decision that laid down factors for invalidating an exculpatory agreement: (1) It concerns a business suitable for public regulation; (2) The service engaged in is of great importance to the public; (3) The party holds itself out as willing to perform the service for the public; (4) The party invoking the agreement has a decisive advantage of bargaining strength; (5) The party gives a standardized adhesion contract, with no option to obtain additional protection against negligence; (6) The purchase is placed under the control of the seller, subject to the risk of carelessness by the seller or its agents
assumption of the risk
________ __ ____ ____ was merged into comparative negligence
implied assumption of the risk
voluntary,
knowing (actual)
comparative negligence
damage rules for _________ _____________
pure-- proportionality
modified 50% or 49.9%
slight
159-164
misrepresentation is in restatement sections ____- ____
last resort
"good faith" is doctrine of ________ ____________
McCutcheon v. MacBrayne
dealings must be consistent (consistent means similar way i.e. phone call invoice repeated with no variation)
respondeat superior
an employer is vicariously liable for the behavior of an employee working within his or her scope of employment
rules for respondeat superior
1. intent
2. nature, time, place
3. time consumed by deviation
4. work for which the employee was hired
5. incidental acts
6. freedom allowed the employee
rule in Oboe
If a party withholds details he knows about a property of material value, the property is voidable? low cost preventer
word, steps
read every _______ of the exam lay out all the ________
detour
Slight deviation from the employers business for an employees own reasons-must be minor in time and minor in geographic area.
frolic
Where an employee acts on his/her own without obeying an order. When combined with a detour, where the employee makes a temporary physical departure from the service of his employer, the employer is not vicariously liable through the doctrine of respondeat superior.
respondeat superior
rule for _________ ____________. Also have to do negligence claim.
1. Employee or Indep. contractor?
2. scope of the employment (frolic/detour, reasonable connection, coming/going)
animals
1. strict liability for owner
2. fence in/fence out= closed range/ open range
a. strict liability applies if the fence isn't built

some knowledge of violent tendencies

vicious/dangerous tendencies

wild animals--strict liability

domestic v. wild
cairns
judge that used "non-natural" use as rule for when to impose strict liability
Blackburn
judge that used "bringing onto property" use as rule for when to impose strict liability
prescriptive easement
- open - notorious - continuous - adverse use - under claim of right - 5 years
- actual knowledge: knowledge requirement much higher bar than adverse possession
- claim of right: (adverse) claiming this as their own but know it is not theirs
- test: continuous use (40 years)
equitable servitude
"A land use restriction running with the land if (1) the purchaser of the servient estate was on notice at the time of acquisition, (2) original parties intended for the restriction to run with the land, (3) the restriction ""touched and concerned"" the land. Usually a written requirement exists, but this can be enforced through equitable estoppel. Remedy is in equity (injunctive relief)."
covenants
remedy is damages
horizontal privity
Nexus between original promising parties. Original parties must be in succession of estate, i.e., they were in a grantor/grantee (A bought the land from B or vice-versa) or landlord/tenant or mortgagor/mortgagee relationships. Very difficult to establish, its absence is the reason why burdens don't run. <so, 9/10 times the answer will be "no it won't run because of the absence of the horizontal privity>
vertical privity
refers to those who subsequently obtain the property subject to the covenant. These successors must take the full estate held by their predecessor.
in gross
In gross is a term used to describe the benefit. A benefit is in gross if it is intended to benefit its
holder personally rather than in connection with any land the holder owns. If the benefit is in gross, it will
not pass with the transfer of land.
covenants, conditions, and restrictions
sometimes called deed restrictions - are private agreements, placed in the public records that control and affect land use.
2-204
Formation of contract under UCC, can be made in any manner sufficient to show agreement.
Touch land
1. Promise must affect parties' legal relations as landowners, not simply members of community at large
2. Covenants to pay money to be used in connection with the land and covenants not to compete DO touch and concern the land
intent, notice
for an easement to run, you need _______ and _______.
easements
which runs easier, covenants or easements?
clear, unambiguous
Yagner--terms must be ______ and ______________ for contracts to be valid.
2-207
Additional Terms in Acceptance or Confirmation - BATTLE OF THE FORMS!!
2-209
Contracts for the sale of goods can be modified at any time without consideration but must be in writing unless specially manufactured goods, admitted contracts, goods paid for received and accepted.
strict lability in restatement
1. high degree of risk
2. likely that harm will be great
3. ability to eliminate risk by exercise of reasonable care
4.extent to which activity os a common usage
5. appropriateness of activity
6. extent of value and danger to community
American Law Reports
the ________ ___ _________ are a resource used by American lawyers to find a variety of sources relating to specific legal rules, doctrines, or principles. It has been published since 1919 and remains an important tool for legal research.
primary authority
cases, statutes, regulations, constitutions
secondary authority
legal periodicals, encyclopedias, ALR, treatises, restatements
ILP, LegalTrac, ILP
___ and __________ are two periodical indexes. ______ is older. good to find law journals
Corpus Juris Secundum, American Jurisprudendce
________ and ___________ are the two legal encyclopedias. good for overview, background
treatise
a legal _________ is more narrow and in-depth than a legal encyclopedia
limited
ALR is a reporter of a ______ number of cases.
ALR
West owns ___. It may also be available on Lexis.
cases, ALR, legal
research references in annotated codes:
1. ________ (primary)
2. secondary sources
-- ______
-- legal periodicals
-- ______ encyclopedias
headnotes
summary of a case, or of an important legal point made in the cases, placed at the beginning of the case when it is published.
federal reporter
Use ________ ___________ to find circuit court decisions
case, reporters
Judicial branch produces _____ law in ________________
statutory, reporters
Legislative branch produces _____ law in ________________
legal research plan, working
steps in creating a _____ __________ ____.

1. gather preliminary information
2. write out a plan. figure out how to make it comprehensive. where to check.
3. __________ effectively in the library.
components
_________ of a legal research plan

1. preliminary issue statement
2. generate list of potential search terms
3. outline what sources
breadth, depth
expand search terms by _________ or by _________
common law
touch and concern test in the __________ ________ about covenants was replaced by a reasonableness test
2-313
Express Warranties by a) promise b) description c) sample/model
2-314
`, IMPLIED WARRANTY OF MERCHANTABILITY

*applies if merchant with respect to goods of that kind.
*selling of food/drink on premises is a sale
*usage of trade is the standard
* even if not merchant, must disclose hidden and known defects
-----
price can be an indication of quality
extinguished
Under the merger doctrine, an easement that benefits the dominant estate and burdens the servient estate is ________________ when fee title to each estate is united in one owner.
explicitly
joint tenancy must be ____________ stated
restraint alienation
A restriction on the transfer of ownership on an estate. Void on a FSA, but acceptable on a Life Estate.
privity, Katz
in dealing with covenants, be careful to deal with __________ and the ______case
encroachment
_______ is to property as trespass is to people
easement
requirements for ________________
-intent
-notice
Servient estate
The tract of land burdened by an easement.
neighborhood conditions
change of condition policy plays deference to _______________ ________________
2-209
Contracts for the sale of goods can be modified at any time without consideration but must be in writing unless specially manufactured goods, admitted contracts, goods paid for received and accepted.
express, warranties
warranty analysis
1. __________ warranties (2-313)
2. Implied __________ (2-314, 2-315)
-when the seller disclaimed warranties
dominant
which warranty is __________?
1. specific warranties
2. tangible evidence
3. express warranties
chattels
articles of personal, movable property
sovereign immunity
modern rule for ________ ___________
ministerial or discretion
negligence
no privity
mis-feasence
________--"foreseeable end user is injured"
things to look for in cases
parties and relationships
places and things
potential claims
relief sought
picking a research scholar
cost, scope
Boolean
terms and connectors searching
Keycite, Shepard's
citators: West, lexis
Focus, locate
make a second search: West, Lexis
similarities, differences
look for _____________ and _________________ on exams.
viable
don't answer all concievable questions, but all ________ questions, easy and hard
884
page in property for covenants running with the land
Federal arbitration act
provides that an arbitration clause in a contract relating to an interstate transaction is valid, irrevocable, and enforceable
strict liability
in the penultimate case of the semester in Torts, the court blended comparative negligence with _________ ____________
third
FSSEL always goes to ________ party.
vested
________ subject to partial divestment.
easement by necessity
Created by a court of law in situations where justice and need, not convenience, dictate the appropriateness of the easement; such as the case of land locked property., occurs when land does not have access to a street or public right-of-way and is landlocked
Warranty of fitness for a particular purpose
arises when the seller advises a customer that a product is suitable for a particular use and the customer act on that advice
negligence, warranty, strict liability
three theories of product liability recovery
inspection
policy: strict liability

--used without _____________ for defects
easement
types of __________
-estoppel
-prescriptive
-necessity
-_____________ by implication
Waywak v. stewart
land must be habitable (developer to first buyer)
Nichols v. R.R. Beaufort & Associates, Inc.
privity does not extend to second buyer.
obde v. schlemeyer
termites contracts
question
Always read the whole _____________
option, liquidated damages
non-refundable deposit may be an __________ or _____________ __________________
knowledge
misrepresentation may be based on ___________.