CRIMES
Define Murder
Unlawful killing of a human being with malice aforethought.
Malice aforethought includes the following:
1. Intent to kill.
2. Intent to inflict great bodily injury .
3. Reckless indifference of an unjustifiable risk to human life (Depraved heart)
4. Felony murder
Define Ademption
If the object is not in existence at the time of the testator's death for any reason such as it was sold, lost or destroyed, the gift adeems (i.e., fails). Ademption only applies to specific devises and bequests.
Can Shareholders enter into agreements to control voting if authorized by the articles of incorporation? If so how long is the agreement good for?
YES! Good for 10 Years
Must be conspicuously noted on the share certificates, or information accompanying the certificate. A purchaser without knowledge may rescind the purchase.
Not permitted in publicly traded corporations
What is the definition of expectation damages and what formula do you use to calculate expectation damages?
Damages to put the party in the position they would be in had the contract been performed.
Lost value + incidental +consequential - costs avoided - loss avoided
What is the free spech test for non-public forums?
(1) Viewpoint neutral; and
(2) Reasonably related to a legitimate purpose
What are the Elements of Robbery
(1) The taking;
(2) Of personal property from another’s person or presence;
(3) By force or threat of force (4) With the intent to permanently deprive the other of property.
How does one revoke a will?
Revocatory Act must be Paired with Intent: Tearing, burning, or canceling a will revokes the will. The revocatory act must be paired with intent to revoke the will. Extrinsic evidence is permitted to determine intent. [UPC § 2-507].
What must the Articles of Incorporation Include?
(a) Name – must contain corporation, incorporated, company, limited or a variation
(b) Number of shares authorized to be issued
(c) Address of registered office
(d) Name and address of registered agent
(e) Name and address of each incorporator
NAME 3 UCC Warranties
Express
Implied Warranty of Merchantability
Implied Warranty of Title
Fitness for a Particular purpose
What are the elements of a regulatory taking?
(1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation has interfered with distinct investment-backed expectations, and (3) the character of the governmental action.
Define Involuntary Manslaughter AND the requisite mens rea
Definition: Unintended homicide that is the result of either criminal negligence or an unlawful act.
MENS REA: Typically Recklessness but can be gross/Criminal negligence.
Elements for Incorporation by Reference
(1) Document to be incorporated must be in existence at the time of execution of the will.
(2) The will must sufficiently describe the document.
(3) The language must manifest the testator’s intent to incorporate the writing. [UPC §2- 510].
How do you amend or repeal bylaws?
(a) Shareholders may amend or repeal bylaws (though the right to participate in amendment or repeal of bylaws may be limited by articles of incorporation) MBCA § 10.20
(b) Board of Directors may amend or repeal the bylaws unless
(i) Articles of Incorporation or other statute reserves that right to shareholders or
(ii) Shareholders, in amending, repealing, or adopting a bylaw, provide that board of directors may not amend, repeal or reinstate that bylaw MBCA § 10.20
What is anticipatory repudiation and can it be retacted?
An anticipatory repudiation occurs where a party to a bilateral contract (1) unequivocally advises the other that his prospective performance will not be forthcoming, or (2) voluntarily undertakes an act which makes his ability to perform dubious.
An anticipatory repudiation can be retracted prior to the time that the aggrieved party has (1) materially relied upon it, or (2) advised the repudiating party that the repudiation will be treated as final.
What is the test for discrimination on interstate commerce under the dormant commerce clause?
Strict Scrutiny. Check if law is discriminatory on its face or in effect. If either, is there a legitimate gov. interest and are there no "reasonable alternatives"
Embezzlement
The fraudulent conversion of the personal property of another by one already in lawful possession
Elements for ADEMPTION BY SATISFACTION
Decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift was an advancement.
Name some examples of oppressive conduct that can happen to a shareholder of a company
Examples of Oppressive Conduct:
(a) Freeze-Outs: When a minority shareholder wants to sell shares and the majority shareholders offer to buy at below their fair market value (remember, there is no market, so minority shareholders can only sell to majority shareholders).
(b) Squeeze-Outs: When a corporation decides to issue more shares but does not give minority shareholders the opportunity to purchase shares in proportion to their holdings. The result is a dilution of the minority shareholder’s interest in the corporation.
What are some defenses that make a contract void? what about defenses that make a contract voidable?
I AM A DUFUS
VOID
Illegality/ Adjudication Incompetent VOIDABLE
MISTAKE . AMBIGUITY. DURESS. UNDUE INFLUENCE. FRAUD. UNCONSCIONABILITY. STATUE OF FRAUDS.
How does a president's veto power work and is a president's veto the final say on a law or treaty?
President has 10 days to exercise power; no line-item veto, and veto can be overridden by 2/3 vote of each house/senate
A false representation that causes the victim to pass possession of their property to the person making the representation. D Must know that the representation is false and intend to defraud the victim by making the representation.
Name any of the non-probate assets that cannot be passed by will
(1) Property that passes by contract (e.g., life insurance proceeds, employee benefits)
(2) Property passing by right of survivorship (e.g., joint tenancies
(3) Inter Vivos transfers and gifts
(4) Totten Trust and Joint Bank Accounts (A Totten Trust is a bank account held in trust for another person; it may be revoked by will and creditors of the depositor can reach the funds of the trust while the depositor is alive.
Name 3 actions Directors DO NOT NEED shareholder approval for
(a) Extension of duration of corporation (if a period was set)
(b) Deletion of names and addresses of initial directors, initial registered agent or office (new registered agent/office must be filed with the Secretary of State
(c) If there is one class of shares outstanding - (i) Change each authorized share or increase number of authorized shares
(d) Change corporate name by changing “incorporated”, “corporation” etc. to another term or changing geographical attribute
(e) Amendment to reflect a reduction in authorized shares when the corporation has acquired its own shares
(f) Deletion of a class of shares when there are no remaining shares in the class (because corporation acquired them)
(g) Any other change expressly allowed in the articles without shareholder approval
Define the standard for modification of contracts under the UCC and under the Common law
Common law: New Consideration Or fair and equitable under restatement 89.
UCC: GOOD FAITH
What are the elements for taxing interstate commerce? THERE ARE 4
1. A Substantial Nexus - The state must have sufficient contact (nexus) with the activity it is attempting to tax.
2. Fair Apportionment - The state must have a rational formula to apportion the tax
3. No Discrimination - The state tax cannot be an undue burden.
4. Fair Relationship - There must be a fair relationship between the tax and services rendered by the taxing state.