Bang Bang Skeet Skeet
What four states of mind qualify as malice aforethought?
2. Intent to cause serious bodily injury
3. Reckless indifference to human life
4. Intent to commit a felony.
What are the two situations in which a plaintiff's express consent will not constitute a defense to an intentional tort?
1. Mistake
2. Duress
Who is responsible for the interest of a mortgage on a life estate? Who is responsible for the mortgage itself?
Life tenant is responsible for interest, remainderman is responsible for mortgage.
Define fraud in the factum and its effect on a contract.
Fraud in the factum occurs when the fraudulent misrepresentation prevents a party from knowing the character or essential terms of the transaction.
Effect: no contract is formed, apparent contract is VOID.
When is a shareholder litigation suit considered a direct action?
When a shareholder alleges direct harm to their rights as a shareholder.
What is the main difference between larceny by trick and false pretenses?
Larceny by trick -- defendant obtains possession
False pretenses -- defendant obtains title
Name the elements of strict products liability.
Plaintiff must prove (1) product was defective, (2) defect existed when it left defendant's control; and (3) defect caused injury when product was used in a reasonably foreseeable manner.
For a constructive eviction claim to succeed, what two things must the tenant do if the property is uninhabitable?
1. Give notice and adequate time for landlord to correct the problems, and 2. vacate property within a reasonable amount of time.
True or false: the mailbox rule applies to the acceptance of option contract.
False. The mailbox rule does not apply to the exercise of an option. Acceptance is valid upon receipt.
What is the process for piercing the corporate veil under the alter ego theory?
To pierce the corporate veil, a plaintiff must show the corporation is an alter ego of the shareholders (failure to observe corporate formalities, etc), and the corporate form was used to promote fraud or injustice.
When are the fruits of a non-Mirandized confession available?
Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.
What test is applied by most courts when the conduct of two or more defendants may have contributed to a plaintiff's indivisible injury?
Substantial-factor test: whether the defendant's tortious conduct was a substantial factor in causing the plaintiff's harm.
Regarding the effect of a mortgage on a joint tenancy, what is the difference between a title theory jurisdiction and a lien theory jurisdiction, and which is the majority rule?
Lien theory states (the majority): no severance - the mortgage is only a lien on the property.
Title theory states (the minority): severance - the joint tenancy is converted into a tenancy in common with respect to the mortgaging tenant.
What three situations provide an agent with power to bind the principal to a contract?
1. The agent has actual authority (express or implied)
2. The agent has apparent authority, or
3. The principal is estopped from denying the agent's authority
Three ways distributions can be made to shareholders.
Paying out a dividend
Buying stock
Distribution of indebtedness
Elements of the M'Naghten test for insanity
What are the two major forms of comparative negligence? Define each.
Pure comparative: P's full damages are calculated by trier of fact, then reduced by the % that the plaintiffs fault bears to the total harm.
Modified comparative: if P is at less fault then D, P's recovery is reduced by % of fault, just as with pure comparative fault.
If P is more at fault than D, P's recovery is barred. If P and D are equal 50/50, majority allows P to recover 50%.
What happens when an attempt to create an easement fails due to the Statute of Frauds?
A license results when there is a failed attempt to create an easement.
What is bribery under (1) common law and (2) modern law
(1) Common law: misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public/legal duties.
(2) Modern law: can be felony, may extend to persons who are not public officials. Mutuality is not required.
What are the requirements for standing to bring a derivative shareholder action?
1. Must have been SH at time of harm
2. Must be a SH at the time the action is filed, and
3. (In most jdx) must continue to be SH during the litigation.
Explain transactional vs derivative use immunity
Transactional: blanket/total immunity. Protects a witness from future prosecution for crimes related to testimony.
Derivative use: only precludes the prosecution from using the witness' own testimony, or any evidence derived from the testimony, against the witness.
What is the doctrine of joint and several liability?
Each of two or more tortfeasors found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. Default rule on MBE.
What are the six covenants of a general warranty deed?
(1) Seisin, (2) Right to Convey, (3) Against Encumbrances, (4) Quiet Enjoyment, (5) Warranty, (6) Further Assurances.
Under the UCC, in what two circumstances does the seller have a right to cure a defective tender?
(1) The time for performance under the contract has not yet elapsed
(2) The seller had reasonable grounds to believe that the buyer would accept despite nonconformity
Seller must give notice of intent to cure and make a new tender of conforming goods.
How is a judgment for a third party against a partnership usually satisfied?
A partnership creditor typically must first exhaust the partnership's assets before attacking the partner's personal assets.