Contracts o Unilateral Contracts A unilateral contract is created when the offeror requests acceptance of the offer by the performance

e of an act rather than by a promise to perform the act. The offer is accepted only when the offeree performas the requested act. o Liquidation Damages o UCC Sale of Goods Undetermined Price Term UCC 2-305(2) permits a contract to leave the price term to be fixed by the seller, but reqyures the seller to do so in good faith. IF the seller acts in bad faith in fixing a price, the buyer may himself set a reasonable price. All this assumes that the parties intended to be bound even in the absence of an agreement or designation of price. o Statute of Frauds in UCC Sale of Goods o Novation Where, following an assignment, the involved parties agree that the assignee shall be substituted in the original contract for the assignor, a novation, or new agreement, has been formed. The original contracting party who assigned and then was substituted for is legally severed from the other original party. o Oral Modification Article 2 provides that in a contract betwee nmerchants, once a written contract is established, parties may modify the terms of the contract without producing additional consideration. o Statute of Frauds, memorize the requirements. Requires that a contract that cannot be performed in one year be evidenced by a writing signed by the party against whom enforcement is sought. This doesnt have to be addressed to the other party it can be addressed to a 3rd party and still be used as evidence. IMPORTANT NOTE: A signature by the party to be charged + a description of the parties + a description of the property + the price = enough to satisfy SoF for purchase of property. The document itself does not need to expressly focus on the sale, it can even be a document by a seller renouncing his offer and it can satisfy the SoF in order for the buyer to enforce. o Doctrine of Impossibility v. Risk of Loss (Doctrine of Equittable Conversion) v. Doctrine of Impracticability o Requriements Contracts although it is the nature of a requirements contract that the exact amount of goods sold is not specified when the contract is exectured, the supplier is not completely at the mercy of the purchaser. The purchased may not demand a quenatity of goods disproportionate to the amount required in a comparable prior period. o Mortgages Priority of Mortgages A purchase money mortgage is a mortgage given to a vendor of the real property or to a thid-party lender to the extent that the proceeds of the loan are used to aquire title to the real property. A purchase money mortgage is given priority over a lien that attaches to the property, even if another lien, such as a judgement lien or a homestead claim, was recorded first. Redemption

 Torts

In lien theory jurisdictions (majority) a foreclosure does not extinguish a mortgagors redemption right (all junior encumbrancers are treated as mortgagors when a senior forecloses)
ELEMENTS REQUIRED FOR PLAINTIFF OR THIRD PARTY RECOVERY Theory 1 (Direct Claim) Theory 2 (Bystander Action) 1) Plaintiff is within the zone of 1) Third party is a close OR danger relative of the victim 2) Plaintiff suffers some physical 2) Third party is present at manifestation of the emotional the scene and suffers distress (or, in some jurisdictions, emotional distress due to emotional distress alone will suffice) witnessing the event ~~~~~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~~~ ~~~~~~~~~~~~~~~~~~ Theory 1 Theory 2 1) Third party must be present when 1) Plaintiff must be present conduct occurs when conduct occurs 2) Third party must be a close relative 2) Plaintiff suffers actual of the victim bodily injury OR 3) Defendant is aware of third partys presence 4) Third party suffers emotional distress

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

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INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

o Assumption of Risk An express assumption of risk in a disclaimer clause is valid only if three criteria are met: 1) the plaintiff is aware of its terms 2) the injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant 3) the disclaimer is not contrary to public policy o Appropriation: an unauthorized use of plaitniffs identity or likeness for defendants commercial advantage. The wrongful use of plaintiffs identity or likeness must be in connection with promotion of a product or service. o Parents liability generally parents are not vicariously liable for the torts of their children however most jurisdictions impose liability where: The parent entrusts the child with a dangerous instrumentality The child engages in tortious conduct while acting as the parents ervant or agent The parent knows of the childs wrongdoing and consents to it The parent fails to exercise proper control over his child. o Contributory Negligence A plaintiff is required to exercise due care to protect himself from injury by defendant. Traditionally if a plaintiff is found to have negaged in contributorily negligent conduct, he is barred from recovering for defendants otherwise negligent conduct. Last Clear Chance Doctrine Provides a basis for recovery even where plaintiff has been contributorily negligent. If the injury to plaintiff could still have been avoided thorugh a subsequent exercise of due care by defendant, then defendant is said to have had the last clear chance to avoid harm, and plaintiffs contributory fault does not bar recovery.

o Products Laibility - MBE TIP: EXTREMELY IMPORTANT TO FIRST DETERMINE IF THE QUESTION INVOLVES A NEGLIGENCE THEORY OR STRICT LIABILITY THEORY BEFORE GOING ANY FURTHER Negligence In order to establish that a defendant was negligent, the plaintiff needs to show that he was o Owed a duty o The duty was breached, o He suffered damages as a result o And that the defendants negligence was the cause-in-fact and proximate cause of his injuries. Manufacurers must show that o 1. the products are designed in a reasonably safe way; o 2. the manufacturing system is reasonably error-free; o 3. the products are reasonably tested/inspected; o 4.the products are packaged and shipped with reasonable safety; o 5. the components used are reasonably competent. Bystanders may be able to sue a manufacturer if thy can show they were forseeable plaintiffs. Strict Products Laibility A defendant manufacturer will be relieved of strict products liability if an intermediate handler of the product discovers the defect and knowingly passes it on the stream of commerce to the plaintiff, having taken no action to prevent the plaintiffs injury. The owner of a tract of properties (seller of 200 homes) can he held strictly liable for defects. o Strict Liability Wild animals v. Domesticated Animals v. Vicious Watchdogs Wild Animals Strict Liability w/ assumption of risk Domesticated Animals Assumption of Risk A defense to strict liability when the plaintiff appreciates the danger and voluntarily subjects himself to the danger. o Vicarious Liability Pay attention to the scope of ones employment. If it is a joint venture it could be vicarious liability for all. When two or more individuals agree to enter into an undertaking in the performance of which they have a community of interest and mutual right of control, they are said to beengaging in a joint venture. Because such an arrangement is similar to a business partnership, each member is viariously liable for any torts committed by the others within the scope of the enterprise. o Malicious Prosecution To prevail, the case against the plaintiff must have terminated in a manner indicating the plaintiffs innocence. o Injurious falsehood A false statement made ot another by defendant that causes econoimic injury to plaintiff. The false statement need not be defamatory, need not personally relate to plaintiff, and need not cause others to shun plaintiffs company.

Defendant must intend to cause others not to do business with plaintiff or to otherwise interefere with his relations with others to plaintiffs economic disadvantage. This statement must be made to a third person. Criminal Procedure o Checkpoints A police checkpoint set up to obtain information from motoriss about a recent crime does not violate the 4th because the intrusion is minimal and the intent is not to find evidence of crime committed by the occupants of the vehicles. Criminal Law o Felony Murder Answer was felony murder because when one causes the death of another during the commission of a dangerous felony or the immediate flight therefrom, he is guilty of felony murder. The felony is deemed to have terminated only when the defendant has reached a place of temporary safety. o Conspiracy v. Attempt Unlike the crime of attempt, conspiracy is a separate and distinct offense that does not merge with the target crime upon completion of the target crime. o Larceny v. Embezzlement Constitutional Law o Supremacy Clause Prohibits the state from regulating in a manner that conflicts with valid federal law. The state may not regulate in a manner inconsistent with federal policy such as for example, refugees where Congress has plenary (absolute) power. o Commercial Speech Commercial speech receives less protection from the Constitution than other types of speech. States can prohibit commercial advertising of illegal matters, or advertising that is untruthful, misleading or deceptive. If the regulated commercial speech is not for those three then a 3 part test is instutituted. The regulation must: Serve a substantial government interest Directly advance the substantial government interest Not be more extenshive than necessary to serve that substantial interest o Appellate Authority of the SCOTUS Under Michigan v. Long, any opinion of the highest appellate court of any state appealed to the SCOTUS cannot be revied by the court if the decision in the case is based on independent, adequate state law grounds. However, when the opinion is unclear as to whether the decision was based on state or federal law grounds, the SCOTUS may review the case and decide the federal issues. Under Article III, Section 2 the SCOTUS is given appellate jx both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The case of Ex Parte McCardle upheld Conress power to regulate broadly the scope of appellate jursidction of the SCOTUS, subject to certain limitations: Congress may not deny the SCOTUS its essential constitutional role by taking from it all avenues of review, although certain classes of cases may be restricted, as long as some lower federal court has jurisdiction and due process protection is afforded. o Original JX of the SCOTUS Under Article III of the Constitution, the jx of all federal courts is limited in natuerand cannot be expanded beyond the parameters established in Article III. The

SCOTUS has orgiainal jurisdicition over all cases affecting amabassadors, other public ministers and consuls, and cases in which a state is a party. The original jurisdiction cannot be constitutionally expanded. o Commerce Clause Under the Dormant Commerce Clause, states have power to regulate interstate commerce provided that the regulation 1) is not preempted y existing federal regulation 2) does not discriminate against interstate commerce o A state may discriminate if Congress authorizes the discrimination or if the state hows a leitmiate local purpose and the unavailability of nondiscriminatory alternatives. 3) does not impose an undue burden on interstate commerce o A state may unduly burden intsrtstate commerce procided that, the burden imposed is outweighed by the local interst advanced. Court also determines whether there exists less discriminatory alternatives. o Congressional Authority Congress HAS NO authority to resolve disputes between states that authority rests exclusively in the judicial branch. o Standing Federal taxpayers generally dont have standing to challenge a federal spending program because the injury is deemed to remote. However there is one primary exception to this rule: when the congressional spending violates some specific constitutional limitation on the spending power, a federal taxpayer has standing to chalalenge the unconstitution expenditure. o Speech Restrictions A regulation of speech in a public place is subjected to scrutiny very similar to that of intermediate scrutiny under equal protection analysis. The regulation must be content-neutral, narrowly tailored to serve a significant government interest, and leave other channels of communication open. o Bill of Attainder A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. MBE TIP: Anytime I see a political group explicitly mentioned and a law specifically aimed at them I should be thinking bill of attainder. o Federal Pre-emption Even if a state statute is not expressly preempted, the statute may be impliedly preempted if Congress intended the federal law to occupy the field. A court will consider (1) whether the federal scheme is so comprehensive that Congress left no room for the states to enact supplemental laws, and (2) whether there is a need for a uniform regulatory scheme to avoid confusion and difficulty in administration. o Admission of Past Crimes MIMIC RULE Evidence o Competency of Witnesses Under FRE 601, every person is competetnt to be a witness. FRE 602 limits witnesss to testifying as to matters within their personal knowledge. A witness with personal knowledge of the accident will be competent to testify, even if that witness is a child.

At the common law, witnesses would be competent only if they both possessed personal knowledge of the subject matter of their testimony and possessed the capacity to pecieve and tell the truth. HOWEVE under the FRE questions of mental competency go to the weight of the evience and not to the admission of the testimony. MBE TIP: Anyone can testify if they have personal knowledge, it does not matter how impaired or young they were. o Expert Witnesses No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto. o Admissability of Evidence of Past Crimes Evidence of other crimes is not admissible under the Federal Rules to show that the defendant is more likely to have committed the crime inquestion. HOWEVER: Under Rule 404, the prosecution can offer evidence of other crimes to show, motive, intent, mistake, identity, or common scheme or plan. o Admission by a Party Opponent v. Declaration Against Interest Prior statements of a party are non-hearsay if offered into evidence by an adverse party. Declaration Against interest requires that the declarant be unavailable at trial, to constitute a declaration against interest. o Property o Covenants A covenant is a contractual obligation that is created in connection with the transfer of reap property. If done propertly, the covenant will bind and benefit not only the original obligor and oblige, but will run with the land to bind and benefit successors to the original parties. A covenant may be either negative (a promise not to do something, such as not to use land for anything other than farming) or affirmative (a promise to do something, such as pay dues to a country club). Covenants may even apply to those who acquire by adverse possession since they are said to sink their claws into the land and not the title itself. o Equittable Servitudes Can be enforced by a successor to the original parties without consideration of privity, so long as the servitude touches and concerns the land, was intended by the partie to bind successors, and the party burdened had notice of the servitude, it can be enforced against him. Intent to bind successors may be apparent from the language of the promise (where the obligor promises on behalf of herself and her successors and assigns) or may be implied from the circumstances. o Adverse Possession Marketability of Title Tradiationally, title acquired by adverse possession is unmarketable. However, recent cases (though still the minority view) suggest that title acquired by adverse possession may be marketable if: o The possession has been for a very long time o The risk that the record owner will sue is remote o The probability of the record owners success is nominal.