Date:	2005-12-05 22:35
Subject:	Torts
Security:	Public
Mood:	predatory

Torts Outline

Intentional Torts
Battery
Assault
False Imprisonment
Intentional Infliction of Emotional Distress

Battery

An actor is subject to liability to another for battery if
a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
b. a harmful contact with the person of the other directly or indirectly result.

Elements of the Restatement
Act
Intent
Causation
Injury

Intent
An act my be done with intention if
a. it must done for the purpose (wanting to do something) of causing the contact , or apprehension, or
b. Knowledge on the part of the actor that such contact, or apprehension is substantially certain to be produced.
a. Must be more than a grave risk.

Intent in children
The only circumstances where Brian’s age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material
Look at the average child
Intent in the Mentally Ill
An insane person must have been capable of entertaining the same intent and must have entertained it in fact.

Transferred Intent
Actor tries to batter one person and actually causes a harmful or offensive contact to another. In the situation, the tortuous intent transfers from the intended target to the individual actually battered. If the D intends to commit another common law tort and ends up battering someone, transferred intent is used to charge him with battery.
Rationale: Tortfeasor’s act is just as culpable when her aim is good or bad. It would be unconscionable if she were exonerated just because she hit the wrong person.

Injury
Harmful or Offensive Contact

Harmful
Any physical impairment of the condition of another’s body, or physical pain or
illness.
Offensive
Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of it inviolability.
Includes anything grasped by the hands which are so intimately connected with one’s body to be regarded as part of that person.

Vicarious Liability
Employer is responsible for the tortuous acts of their employees if the employee is acting within the scope of their employment.

Assault

One is liable for assault if one acts intending to cause harmful or offensive contact, and there is an
apprehension of such a contact.

Act
An act intending to cause harmful or offensive contact or the imminent
apprehension that such a contact will occur.

Intent
Intent to cause a harmful or offensive contact
Purpose to cause a harmful or offensive contact
Knowledge with substantial certainty that a harmful or offensive contact will
occur

Causation
Cause imminent apprehension directly or indirectly

Injury
Well founded fear, or
Well founded- totality of circumstances
Fear- apparent anticipation or awareness that an act will occur

Apparent and present ability to commit the act
Perspective of a reasonable victim
Not actual ability of perpetrator, but physical display
Imminent apprehension
Creating in the mind of the alleging party a well-founded fear of imminent battery.
Apprehension, anticipation, and awareness.
According to the person in the position of fear.

Fear is an objective standard
If a person was aware of an imminent battery and it looked like the other person had the ability to commit the act, then there is fear.
Well-founded fear of an imminent battery with the apparent present ability to effectuate the attempt.
Immediate, urgency

Well-founded
What makes something well-founded and not irrational.
Surrounding circumstances
What a reasonable person would think.

False Imprisonment
A). Rule
Act: Intending to confine the other or a 3rd person within fixed boundaries
Intent/Causation: His act directly or indirectly results in the confinement of the other, AND
Injury: the other is either conscience of the confinement or harmed by it.


Act:
Act intending to confine the other or a 3rd person within fixed boundaries

a. Affirmative Act
If one should, without right, turn the key in a door and thereby prevent a person in the room from leaving, it would be simplest form of unlawful imprisonment.
Physical Restraint
b. Inactivity and Legal Duty
i. Pre-existing agreement
Explicit, or
Implied
ii. No other reasonable means of escape
Peril to life or limb
Unreasonable if:
Involves exposure
Material harm to clothing
Danger or substantial harm to another
No escape route known to the individual

If only means of escape could case physical danger
and could have not been injred during imprisonment
then no damages for harm while trying to escape.

iii. Control of the Situation
One who created the situation
One who can stop the situation
Expectation and morality
iv. Wrongful or unlawful refusal
Look at whether there was a reasonable expectation and the
commitment made

Intent
Act directly or indirectly results in the confinement of another


Injury
Restatement - The other is either conscious of the confinement or harmed by it
1. no adequate legal justification and against will
a. expressed-individual stated so,
b. or substituted will of legal guardian
2. Knowledge or conscious of confinement
Dignitary Tort: If unconscious at time of confinement
i. Can be stripped on one’s dignity
1. Look to the totality of the circumstances

Consciousness at the time or a later recollection
If no clear injury you will have to talk about consciousness
If there is harm then consciousness isn’t as much of an issue, if at all.


Intentional Infliction of Emotion Distress
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Act
Extreme and outrageous conduct
1. Outrageous in character (What you are doing to the person, beyond all bounds of decency).
Objective test of how outrageousness
2. Extreme in Degree (How far over the line and frequency)
3. Personality of the plaintiff
4. Surrounding Circumstances

Intent
One who intentionally or recklessly causes severe emotion distress

Intentionally
an intention to cause severe emotional distress exists when the act is done for the purpose
of causing the distress or with the knowledge on the part of the actor that sever emotional
distress is substantially certain to be produced by his conduct.

Third Party Bystander (Taylor)
Standard for intent for third party bystanders –
Knowledge that the plaintiff is present (defendant knew that she was present) and
What is being present?
(1) seeing the actual act, (bright line test)
(2) seeing the result of what happened coupled with the fact that she heard something at the time it was going on (sensory
and contemporaneous)
(3) constructive presence – its like she is there based on the relationship with the child and the nature of the act
o Ex. babysitter
o morality/fairness – should hold responsible those who are trusted and breach that trust
o Counter – she has suffered but it is a different trauma because she wasn’t present. Seems like the court is stretching the rule to let her recover. SITS
o Rebut – deterrence argument;
o counter-rebut – there should be an even or consistent method of drawing the line. Sometimes knowing what happened and the long term affects can be worse than having witnessed
will suffer severe emotional distress.
Immediate family member
o Closely related – blood, marriage, sibling, parent – easier to administer, there are papers to prove it
o Similar emotional connection (like a parent child) – SITS – Counter – how do you determine the quality of a relationship
Not an immediate family member – must show some type of physical injury

Administrability – have to limit recovery to family members for only
emotional distress.

With Substantial knowledge or purpose
That the Plaintiff is present and will suffer
Defendant must know of presence
Immediate Family v. Non-Family
Presence
Have to see it happen
Know of the events and see results (sensory exposure)
Look at notes.
Constructive (babysitter and mother that gets IIED).
Babysitter takes the place of the mother.

Recklessly
Two Part Test
High degree of probability of it causing harm (emotional distress)
Conscious disregard

Causation
To cause severe emotion distress of bodily harm
Pre-existing condition
Intensify condition
Objective proof that it gets worse

Injury
Results in bodily harm or severe emotion distress
Physical not enough
Severely disabling emotion response to the defendant’s conduct
Fact based on part; worsening of pre-existing condition, or
If it significantly impairs normal activities.

Severely disabling emotional response
Can’t just stop there
so severe that no reasonable person could be expected to endure it, significantly impairs ones abilities to function




Trespass to Land

Restatement Definition
Trespass to land occurs when a person acts with the intent to physically invade the land
of another in a way that interferes with the exclusive right of possession.

Act
Unauthorized, unlawful entry in to the property of another
As long as you are aware of the invasion, it does not matter if you see it or not

More obvious the act, less the injury requirement
Less Obvious the act, more injury requirement is needed


Old Rule is that there must be physical invasions
It doesn’t matter if its tangible or intangible
What matters is the invasion of the property

Immediate above the air.
The air space near the ground is almost as inviolable as the soil itself.

Transitory or quickly dissipating particles that do not interfere with a property owner’s possessory rights are nuisances. Particles or substances that accumulate on the land and does not pass away is trespassing.


Intent
Intent to put your foot down on the property
Mistake – doesn’t matter, A mistake doesn’t negate a trespass

Intent need not be to hurt or offend.
Good will is not a defense.
Mistakes are not a defense
Need not be direct: Cause another to do so.
Can also be refusing to leave once permission is withdrawn

Injury
Against the right of the possessor, not just the owner, to exclude all others from his property
Trespasser has violated the owner’s exclusive right to the property.

Tangible or intangible
Bullet is tangible
Intangible - pollution
The act requirement is less so they require some damage.

Interference with the exclusive right to possess your land is trespass

Test – as long as you possess the property then you can hold someone for trespass.

Air space near the ground is as inviolable (unbreakable) as the soil itself.

For Pollution Look to:
Physical Manifestation of damages
Property value
Damage to ground water, soil, plants
Cracks to the foundations of houses

The more invasive the entry the less injury element needed. The more abstract the
invasion the more injury one must show.

Nuisance if it dissipates
Trespass if it accumulates (tangible)

Nuisance is when enjoyment is disturbed
Trespass is when is pertains to the interference rightful exclusion of property.



Trespass to Chattels

A trespass to a chattel may be committed by intentionally
a. he dispossesses the other of the chattel, or
b. the chattel is impaired as to its condition, quality, or value, or
c.the possessor is deprived of the use of the chattel for a substantial time, or
d.bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Act
Intentionally using, dispossessing or intermeddling with the chattel of another
Intermeddling – intentionally bringing about a physical contact with the chattel.

Intent
Intention even if an innocent mistake
Intent to take or do the act to the item
not intent to take A’s item
Merely interference unless action can show actual damages
Purpose to take item

Causation
Physical Contact or can have contact with intangible property through electronic signal

Injury
a. he/she dispossesses the other of the chattel, or
b. the chattel is impaired as to its condition, quality, or value, or
c. the possessor is deprived of the use of the chattel for a substantial time, or
d. bodily harm is caused to the possessor, or harm is caused to some person or thing in which the
possessor has a legally protected interest.

Physical property damages
Nominal damages – except for harmless intermeddlings
Con for intangible objects (email, internet, etc.)
Impairing the value, quality, or condition of something you have a legally protected interest in.
Legally protected interest equals goodwill.
There has to be an invasion of a legally protected interest
What constitutes a legally protected interest.
Could it be something that is intangible.

Damages
Actual damages, diminished value
Physical Property Damages
Nominal Damages – Except for harmless intermeddlings.

Conversion

Restatement definition
Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
The extent and duration of the actor’s exercise of dominion or control
The actor’s intent to assert a right in fact inconsistent with the other’s right of control
The actor’s good faith
The extent and duration of the resulting interference with the other’s right to control
The harm done to the chattel
The inconvenience and expense caused to the other


Act
1. Dominion over or control that seriously interferes with the right of another
2. Deprive the owner of possessory rights in property (substantially)


Intent
The extent and duration of the actor’s exercise of dominion or control
The actor’s intent to assert a right in fact inconsistent with the other’s right of control
The actor’s good faith
The extent and duration of the resulting interference with the other’s right to control
The harm done to the chattel
The inconvenience and expense caused to the other

Knowledge or purpose
More than a grave risk
Has to know with 90% that it will happen.

Injury
What does the injury have to be?
Tied to the act element

Interfering with the owner’s right of control
The actor is required to pay the full value

Ideas and Information not subject to legal protection except:
1. information gathered, arranged at a cost, and sold as a commodity
2. scientific invention
3. instruments of fair and effective commercial competition
Totality of Circumstances
Extent and Duration
Intent
Good Faith
Harm Done
Inconvenience and exposure

The extent and duration of the actor’s exercise of dominion or control
The actor’s intent to assert a right in fact inconsistent with the other’s right of control
The actor’s good faith
The extent and duration of the resulting interference with the other’s right to control
The harm done to the chattel
The inconvenience and expense caused to the other


Damages
Full Value


Affirmative Defenses - admitting the conduct but there was a justification excusing the conduct not holding him
liable
Can either get completely off the hook or partially

A. Consent
1. Elements –
a) Conduct of the Plaintiff
b) Surrounding Circumstances
c) Objective Standard - outward manifestations - what you say and what you do >> manifestation of feelings and the surrounding circumstances from the reasonable defendants perspective

2. Burden Shifting Analysis
a) Plaintiff states their claim (Battery)
b) Defendant responds – consent
c) Plaintiff invalidates the defendant’s response (deceit)

3. Invalidated Consent
a) Deceit (DeMay)
>>TEST: (AND)
(1) Either
(a) Affirmative misrepresentation of a material fact, or
(b) Failure to disclose
Material fact that is relevant information.
(likely to affect their decision).
Knowledge or reason to believe the true character
Plaintiff has either
(a) no knowledge, or
(b) no reason to know the defendants true
character of the material fact
Defendant
(a) knew or
(b) should have known this was a material fact to the plaintiff
(2) Reliance
Example: teaching hospital hypo – failure to disclose a material fact
Policy:
Social policy - Patient – hospital has the better position to disclose and should tell the patient – Its easier for them to give the information

Hospital – the patient should do the research – administration - too hard to explain who all will be present at the surgery – overall could hurt the hospital because people don’t want to go to residents – chilling effect

Hospital shouldn’t have the burden to disclose everything

In Dr. Patient situations consider these values
Which value is stronger? You have to pick one.
Administrative concerns
experience/social goal
patient self-determination
Patient autonomy v. dr. discretion

Is this something the plaintiff should have known?
Is this something the defendant should have known that the plaintiff
didn’t know?

b) Uninformed consent

c) Scope of Consent (Hackbart)
(1) Where is the source of authority to determine the scope of consent?
(a) the rules of the game
(b) what are the general customs
(c) actual practice
(d) You have to choose which level to go with and support it with a policy – pick one or two – define and apply.
>> Examples – second hand smoking policy
d) In medical situations – Exceptions – if it is (1) life threatening and not anticipated (otherwise there should have been consent), (2) life threatening and imminent, (3) emergency where the patient is unconscious and requires prompt medical attention.
4. Policy
a) Administrability – cant have people leaving because of the health threat and cant sort through people
b) Social policy – if you let it go there is a danger that there is a small pox threat to the public health – the danger of letting her out outweighs her rights
c) Fairness – plaintiff’s argument – reasonable expectations

1. Both engaged in Illegal activity
a. Jurisdiction by Jurisdiction
b. No recovery, shouldn’t profit from wrongful conduct
at end of day, still committed a wrong
fairness
split line
similar interests
c. You can weigh the two wrongs
Policies on both sides

§ M - Define an Indirect act of confinement
Action – locking someone in a closet
Inaction – More detailed Whittaker.
§ S- Whether it is preferred to pick one of the definitions for consciousness or discuss both
Awareness v. Recollection and Recollection
§ M - A mistake in trespass to land- someone gets hit by a car and pushes them onto land… can you sue the
driver or the person put on the land.
The driver would have direct intent. One sentence element; linking the act and the injury.
§ S - Is there Causation in Trespass to land?
Don’t really dwell on the issue.
§ M - What is the causation for trespass to chattels?
§ M - Clarify legally protected interest relate to goodwill.

Defense of others – do more to protect your family.

Date:	2005-12-05 22:34
Subject:	Property
Security:	Public
Mood:	nostalgic

Property Outline
Facts to Analysis
Talk about what the better outcome would be.

Acquisition by Capture

Utility matters in how the court reaches their decisions. Instrumental ends, policy goals
Most rules so far, are based with the betterment of society.

1. General
a. First In Time – basic notion of property law
i. Legal Doctrine & Instrumental Ends
1. Possession – protects expectations
2. First in Time, ownership – promotes certainty, predictability
ii. Capture of Wild Animals
2. First In Time:
a. Ownership is title, legal right to property
b. Possession is proved by showing physical control and the intent to exclude. Natural Liberties.
i. Possession is easier to prove than ownership
3. Rule of Capture
a. Rule of Capture –
i. To gain ownership of a wild animal, a person must have physical possession
ii. Majority Rule – Certain control
1. Mere pursuit does not give rights to the animal. The one who captures the animal gets it. It encourages the pursuer to capture it as quickly as possible. Directly follows the first in time rule.
2. Policy: Rule of capture is easier to administer that a rule that protect pursuers. The court reasoned that they would be flooded with disputes. Importance of certainty and preserving peace.
iii. Interference of a non-competitor:
1. A person cannot maliciously prevent another from capturing wild animals in the pursuit of his trade. A person can lure the wild animals off of the owner’s land but cannot scare them away.
a. Exception: When the other person engages in the same occupation.
i. Keeble v. Hickeringill: the defendant shot his rifle near the plaintiff’s duck pond to scare away the ducks, the court found trespass.
ii. Rational Soli: Land owner has “constructive” possession of animals ferae naturae on their land.
b. The court values the beneficial use of land and competition to increase the efficient capture of wild animals.
c. Since the rule of capture wants animals captured, Keeble also seeks to ensure that the ducks are captured and not lost to either party.
iv. Custom:
1. Title to a wild animal is acquired when the hunter apprehends the animal in accord with custom.
2. An exception to the rule that the captor must have physical control over the animal is in the case where custom is more effective at getting animals killed. If the killer of the animal makes marks of appropriation, he gets it.
a. Ghen v. Rich: Chance finder of a whale carcass has no rights to it. The killer of the whale has the rights.
v. Relativity of Title
1. T trespasses on O’s land and captures a wild animal and takes it to his own land. T1 trespasses on T’s land and takes the animal.
a. T has a claim against T1 for return of the animal.
b. O has a claim against both T and T1 for return.
c. The party with superior title has a claim against all who have an inferior title.
2. Wild Animals – Animus Revertende
a. Wild animals with a habit of returning – these animals continue to belong to the capturer while they roam at large.
b. Escaped wild animals – the captor loses possession of these animals if they do not have a habit of returning.
vi. Fugitive Resources
1. Oil and gases – under common law they are attributed the elements of wild animals
a. They “belong to the owner of the land and are part of it so long as
i. they are on or in it and
ii. subject to his control;
iii. but when they escape or go into other land, the title of the formal owner is gone.”

Water – Eastern Rule. Reparian Rights. Ownership of water is tied to ownership of land.
Western – Prior appropriation. First time rule. The first person to put water to beneficial use gets ownership.

John B. McIntosh – Bundle of Rights.
Right to Use
Right to Possess
Right to Exclude

Popov v. Hiyachi
Legal Realism – Judge tailored the opinion to the result they want.
To know that the person that ends up with an object has a better chance. Burden of Proof.

Right to Exclude

vii. Property owners have a right to exclude intruders/trespassers from their property. Most essesntial stick in the bundle.
viii. Protect individual owners
ix. Protect intergrity of the legal system
x. Punish Trespassers
1. The plaintiff sued for trespass under state law and won. Court said we will protect property rights that private landowner shouldn’t feel that they must take the law into their own hands. Jacque v. Steenberg Homes
2. Exceptions:
a. When the property is a public place
b. In the case of renters/lessors
c. Migrant workers in need of federal services, NJ Trespass Law
i. State v. Shack: Supreme Ct of NJ said that (1) farmer opened his land up by allowing other people to live on it (2) federal gov’t set up legal aide clinic to help migrant workers, if the aide workers cannot consult with the workers the clinic is useless. pg. 87.7
3. Recognition of every person’s right to exclusive enjoyment of his own property for any purpose which does not invade the rights of another person.






Bailments
1.Rightful possession of personal property by someone who is not the true owner
Knowledge of value
Delivery and acceptance to decide the amount of negligence. (Roth v. Peet).
A. Bailor
True owner of the property
Needs intention on both sides
Give and take
B. Bailee
Person holding the property
Must have possession
Physical control and
intention to exercise control
If good is stolen from the bailee he can sue for its return.

C. Rules for Lost Property in bailees possession and misdelivered.
Ordinary Negligence - Lost
Strict Liability – misdelivered

Actual Physical Control
When delivery of a property to a person, expressed or implied, that property will be returned.
Implied – Find someone’s wallet.

Solely for the Benefit of the Bailor – Slight Care/Liability for only gross negligence
Mutual Benefit – Ordinary Care. Care exercised by a reasonable and prudent person.
By Contract – May change standards of care, but both have to agree.
Solely for the Benefit of the Bailee – Extraordinary Care. (First American Bank).
Modern Rule – Use mutual benefit.

Misdelivery – Strict Liability
Liability for even the slightest negligence, but if they get it back
Lost Property Negligence
If can’t show value of item, then the person is held to highest standard (Chimney
Sweep).
Standard of Conversion
If good is stolen from the bailee he can sue for its return.

Replevin – Recover possession
Trover – Money or damages to chattel
Conversion – Damages for property

If good is stolen from the bailee he can sue for its return.


Acquisition by Find

A finder is a baille, in a sense he has a true right to return the property to the true owner.
An owner of property does not lose title by losing the property.
A finder has superior rights over all but the true owner
Sweep over Jeweler (Armory v. Delamirie).
Reinforces belief that the law is just.
If between two thieves then the first one wins.


Object Found in a Private Home
Usually awarded to the owner of the home.
Everything found in land or attached to it.
Owner is not in possession of the Home (Absentee Owner)
If the owner of the house has not moved into the house, it has been held that the owner is
not in constructive possession of articles found within that he is unaware of. (Hannah v.
Peel).

Object Found in a Public Place
Lost-Mislaid Distinction
Was the person there for the benefit of the owner. Why person was there (State
of Mind).
Lost Property - goes to the finder.
Mislaid Property - goes to the owner
Since object was intentionally place, more likely owner will come back
Left were person is most likely to be returned
Valuable items are generally mislaid, not lost Policy – Time limit. Return to true owner. Split owner and finder.
Abandoned Property – Goes to the finder.

Reason for Person to Be Own Property.
Hired to be there
Property is the owners, not the employees
Possession is a conclusion
Factors
Intent
Wrongful doers
Prior possession, and
Constructive possession




Adverse Possession

Requirements of Adverse Possession
1. Actual Entry giving exclusive possession.
Starts the statute of limitations running.
Claim of Right - Adverse Possessor is the only one on the property.
Color of Title – Get all a deed says.
As long the possessor of the title is not on the remaining part of the land.
Boundaries agreed upon is when the statute starts.
Estoppel – Boundaries that you claim are the ones you have to abide by.
2. Open and Notorious
Acts that look like typical acts of an owner of property.
So that people in the community would think the possessor in the owner.
Must put the true owner on notice
Reasonable person standard that a person is there.

Boundary Disputes
Objective – The possessor is holding a claim if his actions
appear to the community to be a claim of ownership and he is not holding with permission of the owner.
Maine Doctrine – If the possessor is mistaken as to the boundary and
would not have occupied or claimed the land if he had known of the mistake, the possessor has no adversity.
New Jersey – When the dispute is really small and requires a survey it is not open and notorious. The statute only runs if the owner has knowledge. (Manillo)
A Fence is open and notorious

3. Adverse and Under a Claim of Right
Hostile – without the owners consent.
Intent is important.
Three States of Mind.
Objective – Only actions are important. They must look like
they are making claims of ownership. Important that he is occupying land without consent.
Good Faith – The adverse possessor has to believe that he has the title. If the possessor knows he has no title, and that someone else has title, his possession is not adverse. Fence - In good faith encroaching. Accident, Sorry.
Aggressive Trespasser – You have know that its not mine, but I have an intent to make it mine. Mistake WILL NOT qualify.

4. Continuous Possession
The degree of occupancy that the average owner would make of the property.
Seasonal use does qualify. (Howard v. Kunto).
Tacking – Adverse possession can be tacked if privity of estate is established. A voluntary transfer of property between adverse possessors.
Putting together periods of occupancy to meet a statutory period.
Abandonment – A true owner cannot abandon ownership if one has a title.
Death – does not equal abandonment. There is still privity.


Disabilities of the Owner
Stops the statute of limitation during the time of disability
Disability has to be present the time of action accrues
Once the disability is removed the owner has 10 years
Only to help the true owner
Disability can’t be tacked
Only go with the first disability.

Extent of Land Acquired by Adverse Possession
Claim of Title – Land only occupied or controlled.
Color of Title – Entire amount of property described in the deed (Constructive).
Considered good faith.
If the person does not have good title and the possessor has a
normal owner action, then he wins.
Life Estate
Same rules as disability.
The person who has life estate has possession.
During L.E. lifetime the clock doesn’t run against the R.M
Clock runs against the R.M. when he takes possession.
If before the L.E. is created the clock starts
The person in possession of the entirety of the interest had the
right to bring a claim against the Adverse Possession then the clock started and continued running.

Adverse Possession of Chattels
Pg. 163
Does not work against the government
NJ Rule: Clock doesn't start if true owner is diligently searching
NY Rule: Clock doesn't start running until the owner knows that the adverse possession has the
chattel and has made a demand and has been refused. If the owner does nothing then clock runs- to
stop the clock one must file suit or take some action against them.

Notes on Adverse Possession
Hostility can get wiggly on issue of state of mind. Honest mistake won't defeat claim unless looking at Main doctrine- says mistake is no good.
If the adverse possessor abandons then they do not have claim.
Intent is the key.
Generally adverse possessor gets the property actually possessed or controlled.
Title transferred by operation of law, title transfers the second the clock runs by the operation of law.


Acquisition by Gift

Definition of a Gift
Voluntary transfer of property without any consideration.
Three Requirements
The donor must intend to make a gift.
The must deliver a gift.
The donee must accept the chattel.

Inter Vivos
Once made cannot be revoked.
If the gift can be delivered, it must be delivered.
Causa Mortis
In contemplation of immediately approaching death.
Revoked if the donor recovers.
The court is strict on causa mortis
Should have a witness, but not necessary.

Intent
The donor must intend to pass title presently.
Usually shown by the objective act of delivery
A promise to give property in the future is not a gift.

Delivery
General
If the gift can delivered, it must be delivered.
Insurance Policy (Newman v. Bost).
Constructive
When manual delivery is impracticable.
Handing over the means of obtaining possession.
Usually a Key.
Symbolic Delivery
Where the gift is too large.
Handing over of an object that is symbolic of the thing given.
Usually an instrument in writing.

Gift delivered on death is usually not valid because it is against a will.
Statue of Frauds.

Acceptance
Law presumes acceptance when the gift is beneficial to the donee.

Life Gift – Delivery does not have to come before intent.
Future Interest – A present interest in property. The person its given has a right at the time of the gift and has a valid interest in the property.
However, possession doesn’t come until later.
The interest of the F.I. can be sold, however the person that buys it does not receive it until the time that the F.I. would receive it.



The Leasehold Estates

Property Law or Contract of Law
Property Transfer
The tenant is entitled to the possession of the estate, which the tenant has the duty of maintaining.
The tenant has bought an estate in land and assumes the risks of caring for the
it.
Contract Law
Promises to pay, rent, tax, etc.
If L breaks a promise, T can break a promise


Types of Leases
Term of Years
An estate that lasts for some fixed period of time or for a period of time computable by a formula that results in fixing calendar dates for beginning and ending, once the term is created or become possessory.
Termination
A term of years expires at the end of the stated period without either party giving notice.
War doesn’t count as term of years because of no fixed duration.


Periodic Tenancy
A periodic tenancy is a tenancy for a period of some fixed duration that continues for succeeding periods until either landlord or tenant gives notice of termination.
Annual Rate payable monthly ($6,000 year, $500 a month) - year to
Year.
Minority View – Monthly only for dwellings and not farms.
If Tenant Holds Over
The landlord may elect to consent to the staying and hold the tenant
liable for further rent.
Termination
Continues until the proper notice is given.
The termination must be equal to the length of the period itself (i.e.
weekly or monthly). For year only six months notice is required.
The notice must fix the last day of the period and it must be the last day
of the period.
Majority Rule – Late notice takes effect at the end of the next month.
Minority Rule – Invalid termination, it is a Legal Nullity.

Tenancy at Will
A Tenancy for no stated duration.
Endures for as long as both desire.
Either can terminate at any time.
Unilateral termination can be written into years or months.
Ends on the termination or death of one of the parties.
Termination
Common Law was no notice had to be given.
Many states now have statutes. Usually 30 days notice, usually on the
landlord.
Tenancy at Will is the default

Holdover Tenants
When the tenant overstays the lease.
Landlord can evict or elect to hold the tenant to a new term.

Once a landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month-to-month basis, but fails to pursue his remedy of ejecting the tenant, and accepts monthly checks for rent due, he in effect agrees to an extension of the lease on a month-to-month basis. (Crechele v, Polles)

Modern Law
Gives the tenant relief where the tenant does not intend to holdover, but is forced to do so by circumstances beyond the tenant’s control.
The relief is that the landlord cannot hold the tenant if he
vacates as soon as possible.
The majority of courts believe an excusable holdover should not be penalized by statute or common law.
Length of the New Term
Usually gives rise to a period tenancy.
In other cases the maximum can be a one year lease (term of years).
Tenancy is governed by the provisions in the old lease.


Selection of Tenants

Apply to the sale and rental of property

Civil Rights Act of 1866
All citizens shall have the same rights in every state.
Remedies are injunction against the landlord and seller, or damages.
Bars all racial discrimination and ethnic discrimination, private as well as public, in the
sale or rental of property.
Fair Housing Act of 1968 (Pg. 461).
It is unlawful to refuse to sell or rent a dwelling to any person because of race, color,
religion, gender, familial status, handicap or national origin.

Advertising
Any public statement that indicates any discriminatory preference is prohibited.
Exemptions
Private Clubs, dwellings for religious organizations, and certain specified persons are exempt.
1. Single-Family Dwelling
Exempt if she does not own more than three dwellings.
Does not use a broker
Does not advertise in a manner that indicates discrimination.
2. Mrs. Murphy Exemption
Exemption if she is offering to lease a room in a building she lives and if she doesn’t advertise.

Proving Discrimination
The plaintiff must make a prima facie case.
1. a member of a statutorily protected class
2. is qualified to rent the dwelling
3. denied the opportunity to inspect or rent dwelling
4. Dwelling remained open for others.
Then the burden shifts to the defendant to produce evidence that the refusal to rent was motivated by legitimate considerations having nothing to do with the plaintiff’s discriminatory trait.

Disability included in the Fair Housing Act.
Must make reasonable accommodations

Landlord’s Duty to Deliver Possession

Delivery of Actual Possession
English Rule
The landlord has the duty to deliver to the tenant actual possession, as well as the right to possession.
If there is a tenant living in the dwelling the landlord is in default.
Remedies
Tenant can terminante the lease or refuse to pay rent. Recover damages
American Rule
The landlord has no duty to deliver actual possession at the commencement of the term, and is not in default when the previous tenant wrongfully occupies the premises. (Hannan v. Dusch).

Remedies
The new tenant can sue to evict, or treat as a holdover and get rent.
The remedy of the tenant is against the wrongdoer not the landlord.

Subleases and Assignments

Assignment
Tenant transfers the entire remaining term of his leasehold and the assignee
comes into Privity of estate.

Sublease
If the tenant transfers less than the entire remaining term he has made a
sublease. No Privity of estate.

Covenants Against Assignment or Sublease
Unless there is a covenant to the contrary, a leasehold is freely transferable by the tenant. It may be assigned or sublet without the landlord’s consent.


Two Views of the Landlord’s ability to Deny Subleases
Older View
If the leases contains a covenant against transfer without the landlord’s consent, then the landlord may arbitrarily refuse to accept a new tenant.
No duty to mitigate damages
New View
The Landlord’s Denial of Consent must be Commercially Reasonable
Financial Responsibility of the proposed assignee (Kendall v. Ernest).
Suitability of the use for the particular property
Legality of the proposed use
Need of alteration of the premises, and
Nature of the occupancy, i.e., office, factory, clinic, etc.























The Tenant Who Defaults

Landlord’s Remedies
Old Rule
If a tenant didn’t pay rent then the landlord could seize chattels
Self-Help
Old Rule
If the tenant had no right to continue is possession the use of
force was permitted.
Peaceable Means
Some jurisdictions the landlord can enter on by peaceable
Means
Self-Help not permitted
Requires the landlord to adjudicate the dispute (Berg v. Wiley)

Abandonment By Tenant
If the tenant abandons the property they landlord may
Terminate the lease
Let the premise lay idle and sue
Retake possession and relet.

Landlord lets the premise lay idle
The landlord does not have any duty to mitigate damages by finding another tenant
New Rule
There is a duty of the landlord to mitigate, take reasonable steps to rent the property.
Residential landlords have the duty to look for new tenants. He has the burden of proving that he used
reasonably and diligent attempts to re-let the premises
The tenant must continue to pay, unless the Landlord neglects his duty to mitigate.
No priority, just shown as normal. Treat it as part of the vacant stock. No effort to show it last either. (Sommer v. Kridel).

Commercial Leases – argument against duty to mitigate is stronger. Two businessmen should know better.

Duties, Rights, and Remedies

Covenant of Quiet Enjoyment
Implied in every lease.
Can get damages
Can you move out and sue.
If you want to get out of the lease you have to move within a
reasonable amount of time.

Constructive Eviction – Pretend landlord evicted the tenant.
A substantial interference with the tenant’s use and enjoyment of the leased premises, so that the tenant can no longer the premises as the parties contemplated.
What the tenant has to claim to break the lease or stop paying rent.
YOU HAVE to Move out to stop paying rent.
MOVING OUT IS REQUIRED FOR CONSTRUCTIVE EVICTION.
I don’t want to move out, but this really sucks. You have to pay rent
but can sue for damages.
Can be present along with the IWH.
Difference of moving out or not. (Reste Realty Corp. v. Cooper).

Implied Warranty of Habitability
Implied in the lease.
Landlord will deliver
Safe, Clean, and Fit dwelling
The plaintiff does not have to move to get out of the lease.
Can also withhold rent.
The tenant doesn’t have to move out.
NO CONSTRUCTIVE EVICTION.
Building codes
Health Codes
Req. for fix
Can stop rent and not move out.

To apply look at housing codes
Can establish Prima Facie case
May determine for safety and health of tenants
Before tenant must give proof of notice and reasonable time.

Damages
Discomfort
Devaluation of property
Annoyance
Rent previously paid
Landlord must bring suit
Tenant must shout Landlord had notice when rent was withheld.

How to tell if Landlord violates the I.W.H
Tenant must give notice
Goes against latent and paten damages
I.W.H. cannot be written out of the lease.


Illegal Lease
A lease for an uninhabitable home is illegal and therefore invalid.
Renting shitholes is illegal and unenforceable. (Hilder v. St. Peter).

Possessory Estates

Types of Estates

Fee Simple Absolute
Absolute ownership of property.
Created – To A and her heirs.

Heirs – people who survive an intestate decedent. Survive someone who dies without a
will.
No heirs of the living; determined at death.
Issue – lineal decedents.
Ancestors – parents
Collaterals – Brothers, sisters, aunts, uncles, cousins.
Escheat – If a person dies with no heirs or anything, then the property escheats to the
state.

Fee Tail
An estate that has the potential of enduring forever, but will necessarily cease if and when the first fee tail tenant has no lineal descendants to succeed him in possession.
To A and heirs of her body.
Means issue.
Has been abolished in most states (Pennsylvania it is all Fee Simple).

Life Estate
An estate that will end necessarily at the death of a person.
To A for life.

Pur Autre Vie
Where the estate is measured by the life of someone other than the owner of the life estate.
Creation
To B for the life of A
Or
A (having an L.E. to) to B

Adverse Possession
Clock does not run against thye remainder man, but they can get a L.E., but only for life
of the L.E.

Ambiguous Language of Construction
You presume the entirety of the estate is passed
Can be overcome by clear language of the contrary.


Waste
Conduct by the life tenant that permanently impairs the value of the land or the interest of the person holding title or having some subsequent estate in the land.

Types of Waste

Affirmative (Voluntary) Waste
Occurs when the life tenant actively causes permanent injury by, for example, destroying buildings or ornamental trees on the land, or removing the natural resources.

Permissive (involuntary) Waste
Occurs when the land is allowed to fall into disrepair, or the tenant fails to take reasonable measures to protect the land from the elements.

Ameliorating Waste
Occurs when the principle use of the land is substantially changed – usually by tearing down a building – but the change increases the value of the land.

Ameliorating waste is actionable if the court that finds:
The grantor intended to pass the land with the specific buildings on it to the hold of the remainder,
And
The building can reasonably be used for the purposes built.

Restraints on Alienation
Blocks transfers of land by tenants without consent from the grantor.
Courts disfavor
Makes land unsellable.

If the Restriction narrows the potential use for the property an IMPERMISSIBLY SMALL NUMBER OF PERSONS
Courts are more sympathetic to charities or schools because they want people to donate so they enforce even when it is a restraint.
Courts are hostile to restraints – the ones that are hostile are looking to see if the restriction is to an impermissible small number of person
Will be willing to uphold if it is schools or charities, want to encourage donations.



Defeasible Estates

Fee Simple Determinable
A fee simple estate so limited that it ends automatically when some specified event happens.
Will Revert automatically
Created by words of duration
Until, so long as, etc.
Possibility of reverted in the original owner

Fee Simple Subject to Condition Subsequent
A fee simple that does not automatically terminate but may be cut short (divested) at the grantor’s election when a stated condition happens.


Created by language of condition
But if
Corresponding FI right of entry to O
Title is only returned when there is reentry

Fee Simple Subject to Executory Limitation
A fee simple that, on the happening of a stated event, is automatically divested in favor of a third person.

Ambiguous will always result in an FSSCS.

Eminent Domain
They take both the fee simple and the future interest and the court decides to split between the two

Standard Rule
Defeasible estate is taken by eminent domain
All money goes to the older of the present interest. Because they don’t worry about future interest due to the chance of stop is hypothetical. At the end of the day the courts are split however.


Future Interests

Future Interests in the Grantor

No subject to the Rule against Purpetuities

Reversion
Created when the transferor transfer less than his entire estate to someone and does not establish with certainty who will get it afterwards.

All reversions are vested interests even though not all will become possessory.
If there is any chance that the property will go back to O, then there is a reversion.

Go back to the grantor without having to do anything.

Not subject to the RAP because it is vested.

Alienability
Is fully alienable/transferable. The transferee gets only an interest that cannot become possessory until the preceding estate terminates.

Possibility of Reverter
Future interest that accompanies a Fee Simple Determinable
Difference is that it comes after a FSD, reversion doesn’t.
Arises when a grantor carves out of a determinable estate of the same quantum.
Conveyed as “so long as” (FSD).

Alienability of the Possibility of the Reverter

Only comes out of a determinable estate

Not subject to the RAP

Termination
Was inheritable, so heirs could exercise possibility.


Right of Entry
Future interest that accompanies a FSSCS
Retained when the grantor creates an estate subject to condition
subsequent and retains the power to court short the estate.

Alienability
Not alienable because it is not thought of as a property interest.
Instead it is viewed as a right in the grantor to forfeit the grantee’s
estate if he wished.


Future Interests in the Grantee

Remainder
A F.I. in the grantee that
1. has the capacity of becoming possessory, and
2. Cannot divest the prior estates

Executory Interest
A Future Interest in the grantee that must divest or cut short a prior estate.
Must always divest the prior estate

Types of Remainders

Vested Remainders

A remainder that requires two things:
1. If it is given to an ascertained person
And
2. It is not subject to a condition precedent

Vested Remainder Subject to Open

A remainder vested in a class of persons, at least one of whom is qualified to take possession.
The shares of the persons are not fixed yet because more persons can become members of the class.

O to A for life, then to A’s children and their heirs
A has 0 children.
A’s children - it is contingent remainder because there are no children.
O has reversion
A has 1 child.
1 child has a vested remainder subject to open. Open because it is a class of people able to be increased. (another child).
O has nothing.
A has 2 children
Each child has 50%, vested remainder
subject to open also called vested remainder
subject to divestment
Vested to an open class


Vested Remainder Subject to Divestment

A remainder that is either
1. Subject to being divested by a condition subsequent, or

To A for life, then to B, but if B does not survive A, to C.
B – V.R. Subject to Divestment.
C – Executory Interest.
C’s interest will divest if the condition
happens.

Vested Remainder Subject to Open and Subject to Divestment

O – A for life, then to the children of A, but if no children survive A, to B.
A has a child, C.
C – Vested remainder subject to open (children of A) and
subject to divestment (if C and any other children of A die
before A).


Contingent Remainders

A remainder is contingent if it is
1. Limited to an unascertained person
Or
2. Is subject to a condition precedent.

If it is given to an unascertained person, or
It is made contingent upon some event occurring other than the natural
termination of the preceding estates.

If something ends in a contingent remainder it is usually a reversion.

O to A for life, then to B if B survives A, and if B does not survive A, then to C
A has a life estate
B has a contingent remainder.
C also has an alternative contingent remainder
No reversion to O.

Alternative contingent remainder
Where there are two contingent remainders and one gets it or the other.

Remainders in unascertained persons

O – A for life, then to A’s children.
A has no children.
A’s children have a contingent remainder.

Remainders subject to condition precedent

An express condition set forth, which must occur before the remainder becomes possessory.
O – A for life, then to B if B marries C.
B has a remainder subject to condition precedent.
If B marries C during A’s life, the remainder vests.
(The condition happens within the
clause/comma).

Executory Interests

Divest or cut short the prior estate.
Rude in nature.
Waiting for something to happen and then taking it from whoever has it

Types of Executory Interests
Springing – divests the transferor
Shifting – divests the transferee

Modern Executory Interest
FSSEL
Is automatically divested by an executory interest in the transferee upon an event happening.
Happens automatically (ex. 16).

O - Gertrude for life (Life Estate), then to 9 children (Vested Remainder Fee Simple Subject to Executory Interest), if…then to children (Executory Interest).


Trusts

A devise whereby one person manages property for the benefit of others.
The person who creates the trust in called the settlor.

Trusts

There are two owners of trust property
Trustee
Legal owner
Beneficiary
Equitable owner
Gets the rights to the proceeds

Fiduciary Responsibility of the Trustee
Two Main Duties
Loyalty
Interests before their own
Care
Take good care of the property

Adverse Possession
Runs against the trustee because he has legal ownership
Power to eject the person
Beneficiaries will have to sue the trustee if the clock runs



The Rule Against Perpetuities

What is exempt from the Rule
Life Estate
Fee Simple Determinable
Fee Simple Subject to Condition Subject

Applies only to you
Contingent Remainders
Fee Simple Subject to Open/Divestment
Executory Interest

The Rule
No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest.
Any contingent must vest with 21 years of someone who is alive at the
time of conveyance.

The conveyance is only good if you can prove that it will vest within 21 years of the life of some being.
It must necessarily vest or fail within the period, no might.

Look at the conveyance at the time of creation.
Courts will not try to protect the donor’s intent


Rules were intended to prevent people from tying up there property and holding onto it forever.
Further marketability.

Limit the amount of time that contingent interests can float out there.

Measuring Life
This interest will vest within 21 years of that person’s death.
You have to know with certainty that this will vest within 21 years of that person’s death.
If it might not vest within that time, it is void.

Must affect the vesting of the interest.
1. Look to the people mentioned in the grant.
a. Remove those not involved in the vesting.


Fertile Octogenarian

Idea that a person can have children so long as the person is alive.
T – My wife, and if her descendants ever run out, to the daughters then living of
Elizabeth Jee (80 years old).

The gift will not necessarily vest or fail at Mary’s death, because the condition will not necessarily happen at Mary’s death (she may leave an afterborn child who dies unmarried and without issue 50 years after Mary’s death).

Also, the gift won’t vest at Elizabeth’s death. “Then living” requires the takers to be alive when Mary’s bloodline runs out, and if they are not alive, the gift fails. The gift is void because it is to the Jee daughters, including those afterborn.

Vesting too remotely
1. After T’s death, Mary Hall has child, Faith.
2. John and Elizabeth Jee have another daughter, Hope.
3. All lives in being die
4. More than 21 years later, Faith dies without a child, survived by Hope.

Unborn Widow

Idea that a person’s surviving spouse might turn out to be a person not now alive.
A man’s present wife may die or be divorced, and the man may in the future marry a woman not now alive (Anna Nicole Smith).

O – A for life, then to A’s widow, if any, for life, then to A’s issue then living.
Then living means after the end of the previous estate.
Would be fixed if it said children and left out the then living.
If A is married now, it doesn’t mean he will be married next year.
T1 – A unmarried
T2 – B born
T3 – A marries B
T4 – A dies.

Gift to issue will vest too remotely.
Vest on the widow’s death because it says then living.
You have to be living at the time of the widow’s death.
Widow’s death may be after 21 years
B (Widow) wasn’t alive at the time of the conveyance so A has to be
the measuring life, but only for the Widow.


If it said to A’s children then it would be a good gift.
A’s children will have a V.R. because it will naturally follow.

For Two following L.E. the second one is vested as long as it is in an ascertained
person.


The Slothful Executor

A bequest to vest “when the estate is settled” or “when my executor is appointed”
violates the rule.

The named event may not happen within lives in being plus 21 years.
The will may not be settled or the estate may be in litigation for over 21 years.

T – to A when my estate is settled
May not be settled within 21 years.
T – to A when my executor is appointed.
No executor may be named within 21 years.

Concurrent Ownership and Marital Rights

Tenancy in Common

Each owner is the owner of a separate and distinct share of the property.
Not divided among the cotenants.

The most basic form of coownership
Have separate, but undivided interests

Main distinguishing factor is that there is no right of survivorship.
Courts favor Tenants in Common.
Can use the property as they see fit.

Equal Shares are not necessary.

Occupation by one Tenant in Common
In absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession
is not liable to his cotenants for the value of his use and occupation property.
The court said that the defendant did not have to pay rent.
He wasn’t denying her access to the property.



Joint Tenancy

Two or more people have an undivided and separate interests
Need Four Unities
Time – created at the same time
Title – acquire title by the same instruments
Interests – equal shares
Possession – both must have equal right of possession to the whole

Right to survivorship (not in a tenancy in common)
If one person dies the other gets the right of ownership

Two owners as joint tenants
What happens when Y dies?
Rather than X getting Y’s share, technically speaking, Y’s share disappears
All goes to X

Can be created by a deed or a will
Does not arise where people inherit by intestate succession.
That creates tenants in common.

Four Unities

Time
The interest must vest at the same time.

Title
Must acquire title by the same deed or will, or joint adverse possession.

Conveyance by H to H and W
Violates the unity of time and title.
Was views as a conveyance of half the interest to the other person

Use of a Strawperson
Convey to a strawperson and then to H and W
H – strawman. Straw – H and W.

Modern Law
May be able to convey from H – H and W because it creates a new
entity.

Interest

Must be equal in an estate of one duration.
Can’t be ½ to A and ½ to B as Joint Tenants.

Another Interest in same property
Property can be divided into fractional shares; part owned by people as joint tenants and the other as tenants in common.

Possession

Each tenant must have the right to possession of the whole.
They can agree that one can have exclusive possession without
breaking the unity.

Creation of Joint Tenancy

Common Law
Was that any conveyance to two or more persons created a joint tenancy.

Modern Law
The presumption of common has been abolished.
Instead a tenancy in common is created.

How to Overcome the modern law
Created only by express words
To A and B as joint tenants with right of survivorship

Ambiguous Language
4 unities present, but no statement of intention.
Good if “jointly w/ right of survivorship”
In that isn’t there:
To A and B (4 unities are present)

To A and B jointly
The new law is so strong that there is still a split

Severance of Joint Tenancy

Conveyance by Joint Tenant
One joint tenant may unilaterally sever the joint tenancy without the use of an
intermediary device.

A conveyance of the tenant’s entire interest or share severs the joint tenancy with respect to that share.
A conveyance to a third person or to another joint tenant
severs the share.

Mortgage by Joint Tenancy
Two Theories
Common Law
The mortgage lender gets the legal title while the borrower could get the legal title back after payment.
The mortgage terminated the joint tenancy.
Lien Theory
Mortgage lender does not have legal title.
A joint tenancy is not severed when one joint tenant executes a mortgage on his interet in the property, since the unity of title has be persevered.

What happens when joint tenant that has a mortgage dies?
The mortgage disappears
The other tenant owns all the land free of the mortgage
If the other guy died first then all the property would be under
the mortgage

A and B are joint tenants
B mortgages his property to C
Then B dies

The mortgage does not sever the J.T.
B only had the ability to mortgage his own interest without A.



Tenancy By the Entirety

Big difference- can't freely alienate it. One spouse can not sell to someone else. Interest is inalienable. Huge impact with creditors rights. Because one can't sell it creditors can't get it. Very important because they come up all over the place.

Date:	2005-12-05 22:28
Subject:	Civil Procedure
Security:	Public
Mood:	chipper
Music:	Dashboard Confessional

Civil Procedure Outline

Federal Court System

Supreme Court
Circuit Court of Appeals
US District Court
Pennsylvania
PA Supreme Court
Superior Court and Commonwealth Court
Court of Common Pleas
State
Court of Last Resort
Intermediate Court
Trail Court

Constitution rules over everything and everyone
States are ruled by their own constitutions as well
Federal Law – supremacy clause, Supreme law of the land when you have a direct conflict.

Authority

Binding precedent
A precedent that a court must follow. For example, a lower court is bound by an
applicable holding of a higher court in the same jurisdiction.
You MUST apply the law. No choice

Stare Decisis
The doctrine of precedent, under which it is necessary for a court to follow earlier
judicial decisions when the same points arise. As long as there is no court above you.
Rule of predictability and stability

Subject Matter Jurisdiction
Power of the court to hear a particular type of case.
Court has to have power over every single claim in the lawsuit

Federal Courts can only hear cases authorized by Article III of the Constitution and congressional statutes.
SMJ cannot be waived. It can be raised at anytime.

Two Types of Subject Matter Jurisdiction
Diversity
Only applies to State Claims

Needs
Greater than $75,000 (amount of controversy)
Between citizens of different states (Citizenship of a state)

Diversity of Citizenship
A diversity suit could be brought “between a citizen of a state…and a
citizen of another state.” The court interpreted this language to mean that all
claimants must be qualified to sue all defendants.

Citizenship of Corporations
State of incorporation
And
State of principle place business
A corporation can have more than one state of citizenship


Federal Question Jurisdiction
District courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
Apply to a Federal Claim or Federal Law.

Sources of Federal Law
Constitution
Congressional Statutes
Administrative Policies

State Law
SMJ is determined by state constitutions and statutes

Concurrent Jurisdiction
State courts can hear the same claims as Federal Courts unless the federal courts have exclusive jurisdiction over the particular type of claim.
Includes Federal Constitutional and statutory claims

Exclusive Federal jurisdiction generally requires express language in a federal statute stating that only the federal courts can hear that type of claim.
The Supremacy Clause requires that state courts apply federal law to federal question claims tried in state court.

Personal Jurisdiction

Normal Rule
Defendant has to be a citizen of the state they are served in.
Own property in the state.
If they are physically in the state
Minimum contact
Deer hunter.
Can sue someone where they are.
Exception
You can’t lure them by fraud.
A judgment procured fraudulently lacks jurisdiction and is null and void.
Fraud defeats personal jurisdiction.

Out of State Defendants
Due process limitations, Defendant must have sufficient minimum contact with forum state such that maintenance of suit does not offend traditional notions of fair play and substantial justice.

Duly authenticated judicial proceedings “shall have the same full faith and credit in every
court within the United States as they have by law or usuage in the courts of such state
from which they are taken, unless the judgment is procured fraudulently.

Venue
Once it is decided that the federal court system can hear a case (SMJ), it must be decided which particular courts within that system can hear a case.

Statutes establish venue for claims not covered by a special statute
• Rule 12
•
Diversity
• where the defendant resides
• where substantial event occurred
• any district which has personal jurisdiction at the time the action is brought
•
Federal
• Where D resides
• Where Substantial events occurred
• In any district where defendant may be found
•
Corporate Defendants
• Any District where they are subject to Personal Jurisdiction

Waiving Venue:
A rule 12(b) 3 motion for improper venue must be either:
1. Before the answer is sent, or
2. In the answer itself

Service of Process

Summons
a) Rule 3 - Commencement of action done by filing a complaint with the court
b) Rule 4 - Summons (due process) served along with a copy of the complaint; function is to inform the defendant of the action pending against him
i) Notice must tell D of consequences of failure to comply with request for waiver, allow at least 30 d. from day sent for return of waiver request
ii)  if D does not waive service of summons, gets just 20 d. to answer, and costs of service (inc. atty fees of any motion required to collect costs) will be imposed on D unless can show good cause for the failure
iii)  if D does waive service, has until 30 d. after date on which request for waiver was sent to file answer to complaint (60 d. outside US)
B efore summons is served:
iv) Rule 4(a) Format: signed by clerk, bears seal of court, identifies court and parties, states the name and address of P (or P’s attorney if unrepresented); time within which D must appear and defend; notifies that not appearing will result in default judgment.
v) Rule 4(b) Issuance: at time of or after filing complaint, P presents summons to clerk for signing and seal if in proper format (a summons or copy goes to every D where there are multiple Ds)
How served 4c1 and 4m:
Rule 4(l) Proof of Service: If service not waived, person effecting service should make proof of service. Affidavit if not a US marshal/dep. Marshal. Failure to make proof of service does not affect the validity of the service.

Code Pleading:
vi) Requires just the facts, where just the facts includes articulation of: (1) duty one person owes another, (2) violation of that duty, (3) consequences associated with that violation (4) claim for relief.
1. Gillespie v. Goodyear Service Stores: Application of Code pleading: Pleading not specific enough in facts (P states no facts, but “mere conclusions”) to allow either judge to understand whether there is a case, or to allow Defendant to prepare a case.
2. Plead just the facts

Notice Pleading (Federal Rules) – 8 (and 11)
Example of negligence pleading: Form 9 in the FRCP book

Complaint

vii) Rule 8(a)Pleading must include:
1. short, plain statement of the grounds on which court’s jurisdiction depends (unless court already has jurisdiction and no new grounds needed);
2. short, plain statement showing the pleader is entitled to relief
3. demand for judgment for the relief pleader seeks (inc. relief in alternative or multiple types of relief)
4. Rule 11(a) signature by at least one attorney or the party if not represented (+ name, address, phone number, if any) – unsigned paper will be stricken unless omission of the signature is promptly corrected

viii) Rule 8(e)1 Pleading is to be concise and direct
1. Statements in pleading shall be simple, concise, direct; no technical forms required

ix) Rule 8(e)2 Pleading in the alternative: Multiple claims or defenses, alternately or hypothetically, can be made:

Conley standard in all cases.
Judge has the complaint and the law.

The court will only dismiss for failure to state a claim if it is clear that the plaintiff can prove no set of facts entitling him/her to relief.

Look at facts plead in the complaint and view them as true (light most favorable to the plaintiff).

How a claim can be dismissed
1. Law doesn’t allow the plaintiff to recover
2. If the plaintiff has not given enough to give notice.
Rule 9
Fraud, Mistake you have to do more than notice pleading.
Must plead with specificity.
You need the time, place, and content of the false misrepresentation.
Who made the scheme, what is was, what was gained, what was misrepresented, who
was hurt.
This is because fraud could be tacked onto many causes.
Making someone sound bad. Attacking their reputation, moral turpitude.
Want to make sure that you have a legitimate claim.
Rule 12
12b Possible pre-answer motions:
1. lack of jurisdiction over subject matter
2. lack of jurisdiction over person
3. improper venue
4. insufficiency of process
5. insufficiency of service of process
6. failure to state a claim upon which relief can be granted (demurrer)
7. failure to join a party under Rule 19

2. motion making any of these defenses should be made before pleading where further pleading is permitted

3. can join multiple defenses/objections together

4. where the pleading of P doesn’t require a responsive pleading from D, D can assert at trial any defense in law or fact to the claim.
12e Vagueness of pleading: motion for more definite statement
x) can be made before making a responsive pleading where responsive pleading is permitted and the original pleading is so vague or ambiguous that party can’t reasonably required to frame a response
1. Motion must point out the defects complained of and the details desired.
2. If motion is granted and other party does not furnish more definite statement within 10 d. after notice of court order or w/I such other time as court fixes, court may strike down the original pleading or make an order as it sees fit
3. Stops the clock
12f Motion to Strike:
xi) court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter upon motion by party before its responsive pleading; or upon motion within 20 d. after service of original pleading where no responsive pleading is permitted; or when court initiates the motion.

Answers
Admissions
Denial
Insufficient Information
Affirmative Defense
Rule 8b Form of denials

xii) defenses to each claim of the other party shall be made:
1. in plain terms
2. by admitting or denying the averments of the other party
3. where not enough information to admit or deny, state so = effect of denial
4. only deny what is untrue, admit everything else
Rule 8(c) Affirmative defenses

xiii) a defense that admits allegations of Plaintiff, but says there is some reason why the allegations still do not add up to sustain a legal action;
1. in answering preceding pleading, party must set forth affirmative defenses (inc. arbitration, contributory negligence, duress, estoppel, illegality, laches, statute of limitations, waiver, qualified immunity, etc.)
2. Can’t be brought up later if not pled.

xiv) Must be inserted in the answer or a 12(b) motion.
1. If not inserted then waived.

Rule 13 Counterclaim/Cross-claims

Compulsory Counterclaims
Any related claim arising out of the initial action.
Must be joined.
Any third parties involved must have Personal Jurisdiction
The counterclaim must be stated in the pleading unless
a. the claim is already subject to another pleading
b. the defendant brings the suit by attachment or process without the court’s jurisdiction.


Permissive Counterclaim
Any claim against an opposing party which is not related to action.

Cross-claims against a co-party
Considered permissive

Same transaction
1. Arising out of the same tranaction or occurance of either
a. The original action, or
b. A counterclaim

Indemnity
Cross-claims may include a claim to a co-party to indemnify the claimant for all or part
of liability arising out of the action.

Third Party Claim
Defendant may become a “third party plaintiff” by serving a complaint on a third party (who is not
in the original action).
This happens when the defendant feels that the third party is liable to indemnify the defendant for any judgment (motorcycle tire manufacturer and valve manufacturer).

Rule 11 Sanctions

Requirements to go through
Objective Standard
21 day grace period
Sanctions

Does not apply to discovery


xv) Rule 11(b)
1. By presenting pleading, motion, other paper to court, attorney or unrepresented party certifies that, to best of person’s “knowledge, information and belief,” formed after reasonable inquiry:
2. 11(b)1: Paper not presented for any improper purpose, like to harass or cause unnecessary delay, or needless increase in cost of litigation
3. 11b2: Claims, defenses, other legal contentions are warranted by existing law or by nonfrivolous argument for extension/modification/reversal of existing law or establishment of new law (~12(b)(6))
4. 11b3: Allegations and other factual contentions have evidentiary support or are likely to after reasonable opportunity for further investigation/discovery
5. 11b4: Denials of factual contentions are warranted on evidence or, if specifically identified as such, are based on lack of information or belief.

xvi) Rule 11(c)
1. If court determines 11b has been violated, sanctions may be imposed on attorneys, law firms, or parties who violated/are responsible for violation. (can be initiated by motion or by court)
2. To initiate by motion, 11c1A party must:
• move separately from other motions
• describe the specific conduct alleged to violate 11b
• [safe harbor provision] not file/present to court unless within 21 days after service of motion the challenged paper/claim/defense/contention /allegation/denial is not withdrawn or corrected
• (expenses and atty fees may be awarded to prevailing party; firm held jointly responsible for violations committed by its employees)
Nature of Sanctions 11c2

3. Limited to what is sufficient to deter repetition of such conduct
4. May consist of/include
• nonmonetary directives
• order to pay penalty into court
• order directing payment to the movant of some or all atty fees and other expenses incurred as a result of the violation
5. Exceptions
• 11c2A: No monetary sanctions against represented party for violation of 11b2 (don’t expect the represented party to know the law)
• ???11c2B no monetary sanctions on court’s initiative unless court issues order to show cause before vol. dismissal or settlement of claims made by/against party to be sanctioned
6. When court imposes sanctions, it should describe violating conduct, basis for sanctions. 11c3
History of Rule 11 sanctions
Post 1993: sanctions optional, less emphasis on $$ sanctions

Rule 11 sanctions are always tied either to a writing or a representation of a writing.

Rule 15

Rule 15 (a)
Given freely when justice so requires

once issue is joined in a lawsuit, a party may amend his pleading, ‘only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”
Should be easy because you are fixing mistakes.

xvii) Before responsive pleading is served, once as matter of course (then other side has either the original time frame or 10 d. after service of amended pleading to answer);
Otherwise, only with leave of court or by written consent of adverse party


Supreme Court’s interpretation of Rule 15.

The court should grant the amendment, unless there is
1. Undue delay (on the part of the amendment)
Negligent - The amendment took way too long.
2. Bad-faith or dilatory motive
Done to defraud the other party or the court
Increase costs for the other side
Dilatory motive – Trying to delay/stretch out the lawsuit
More than a negligent motive.
3. Undue prejudice
4. Futility of the Amendment
No substantive law or the Statue of Limitations has run.
5. Repeated failure to correct amendments


Rule 15(c) – Relation Back

Relate new claim to an old claim
Adding a new claim against an existing party

Allows us to get around the statute of limitations
Prevent undue prejudice to the other side.
Brought as if it was under the original complaint
Can also add additional complaints


After trial you can amend the pleadings to add what has happened during trial
S.O.L protects against claims with stale/unreliable evidence
15(c) 1 – look at statute of limitations. It has to be explicitly stated.
15(c) 2 – Claim has to relate back to the original claim.

Fair Notice
Defendant must have known that new claim could have been added.

The amendment must be according to the law that provides the applicable statute of limitations, or where the claim asserted in amended pleading arouse out of same conduct, transaction, or occurrence set forth in the original pleading

Adding or Changing the Party Name/Party
Where amendment would change the party/naming of party against who claim is asserted and item (15(c)1 and 2 are satisfied, and new party has rec’d service and it knew/should have known that it was the party to have action brought against, but for the mistake.

No unfair surprise
New party must have had reason to know of the claim within 120 days after it was served
to the original defendant.

Mistake
Broad or narrow interpretation

After 15(c) you go back to 15(a)
Then court must give permission to amend still

Why allow the amendment
The defendant should already know what was going on.
The have fair notice from the original claim.
It might go to the undue delay or the futility argument.
The claim
15(c) 3 – Objective standard
Use deposititions or affidavits to get truthful answer

Divide 15 up into categories for what you need to do
15(a) For an amendment requires within the statute of limitations
15(c) for bringing a new claim against the same party
Then bringing in a new party after the S.O.L has run.

Rule 15
Section A always applies
Section B allows for special kinds of amendments
Section C only applies if the amendment is outside the statue of limitation
Section D applies to adding extra violations that keep happening

Discovery

Always start with whether it is relevant and if it is privileged or not.

1. Designed to help you investigate the case
Trying to find out what really happened and find out both sides
Good and the bad
2. Trying to get evidence in a form that you can submit as evidence in trial.
Keeps people honest.
Ethical and Civil Rules stop you from abusing discovery
Freeze harmful evidence

Scope of Discovery
The first question asked
Does it fall within the scope of discovery?
If not, you don’t get it.
Matter that is relevant, but not privileged.
What does Relevant mean?
Anything that can reasonably lead to admissible evidence. (Bank of the Orient).
Report on everything that is wrong with the bank
Reasonably calculated to lead to admissible evidence
Germane to the case
Not privileged
Can ask for broader discovery
Any matter relevant to the subject matter of the action
Have to make a motion and show good cause
Pre-Trial Conference
Parties must meet in order to try to settle, to reduce costs, discuss discovery.
Attorneys have a conference about rules of discovery before the court is involved
Then both sides have 14 days to automatically disclose.
Only have to identify persons with information that are used to support your side.

Privileges

Attorney-client
Doctor-patient
Clergy-parishioner
Spousal
Psychotherapist-patient

Constitutional – 5th Amendment
To criminal cases
Rare in civil cases.

Confidential News Source
Some states, not really federal
Qualified immunity

Attorney-Client
No exceptions (unless it is waived)
Confidential communication between the attorney and the client
Can be waived
Includes attorney’s agents
Law clerk and the secretary

Corporate Client
Treat corporations as people for civil litigation
The client is the corporation
The questionnaires were relevant
Supreme Court expanded the definition of the client to include the employees of the corporation (Upjohn)
Public Policy
Need free flow of communications between clients and attorneys

It is frequently the employees that have information

Confidential communications between corporation’s attorney and corporation personnel, including employees
Corporations counsel has to be acting on direction of corporations superiors
To secure legal rights
Communication treated as confidential

Can ask about facts, but the communications are privileged


Rule 26(b)(3) – Trial Preparation Materials

Basic Rule
Tangible material that is prepared in anticipation of litigation by/for the attorney or their agents. (Hickman)
Attorney witness statements
It was stuff that they could get on their own
You can ask who the witnesses are and the other side can interview those witnesses
themselves.

Documents and tangible things NOT made in ordinary (routine) course of business

Prepared in anticipation of litigation
Written by or for the attorney, client, or their agents.

Exception
Substantial need in preparation of other party’s case
And
Unable to obtain the substantial equivalent without undue hardship
Counter-Exception
Opinion Work Product
Mental impressions, conclusions, opinions, legal theories “I think my client has shifty eyes”
Absolute privilege

If client is unavailable, but attorney’s opinions are on the paper, then the judge will redact the interview.

Rule 26(b)(4)Experts

1. Formally retained, expected to testify
Get discovery and automatic disclosure and a specific report
Identity Opinions, exhibits, data, qualifications, cases used for, etc.

2. Formally retained, not expected to testify (hire as a consultant)
Generally can’t get discovery
Policy to get attorneys to consult experts Can be considered trial preparation material
Unless exceptional circumstances
It is impractical to obtain facts or opinions by other means
Exceptional circumstances
Discovery by deposition or interrogatories (to party)
3. Informally Consulted, not expected to testify (your friend)
Can’t get discovery

4. Expert as ordinary witness as an ordinary witness
You get discovery as ordinary witness not as an expert

5. When the Expert is and Employee
If employee named they are treated as expert as soon as they are appointed as the expert

Rule 26(c) Protective Order
Where justice requires protection of a party or person from annoyance, embarrassment, oppression, undue burden or expense, court where action is pending or, if matter relates to deposition, court in district where deposition is to be taken, can make a protective order that
1. No discovery or disclosure of the matter
2. disclosure/discovery only on specified terms
3. discovery only by a method of discovery other than that used by seeking party
4. certain matters not be inquired into; or scope be limited
5. discovery conducted w/ no one present except persons designated by court
6. deposition be opened only by order of court (after sealed)
7. trade secret, etc. not be revealed, or only revealed in a specified way
8. parties simultaneously file specified documents enclosed in sealed envelopes

Rule 26(c)(7) - Trade Secrets
Abuse of discretion standard applies to trade secrets

Judge can
Grant discovery
Prohibit discovery (full protective order)
Issue partial protective order
Judge must balance needs of the case and the harm done to the party.


Rule 26(a) - Automatic Disclosures
At the beginning of the law suit
Persons likely to have info:
Might be used in support of disclosing parties case
Names, addresses, and phone numbers
Subjects

Documents and Tangible Things (only favorable documents)
Might be used in support of disposing party’s case
Identify subjects or copies

Computation and Documents on damages (break down of damages)

Copies of insurance agreements that might be used to satisfy judgment
(only insurance that will cover the damage; C.P.’s not the Jackson’s)

Sanctions 26(g)- Rule 11 for Discovery

Remember that rule 26(g) attributes to every attorney signing a discovery request, response, or objection an automatic certification based on a standard of reasonable inquiry, and this provides further support for the
NEGLIGENCE standard.
Designed so the judge does not have to be involved in the process.
Could sanction Attorney's fees, order to compel,
Takes away the benefit that they may get from doing something wrong.
Specific deterrence, and general deterrence.
It ensure abuser does not benefit from violation

26 (g) is the rule 11 for discovery- you do not get the 21 day safe harbor provision.
Sanctions mandatory for violations
Cost and attorneys fees incurred by violation generally assessed and paid to other party rather than to court.
Attorney or unrepresented party making discovery sig. Requirement
Applies to automatic disclosures and general discovery.

Signature Certifies
Consistent with rules and warranted by law or a good faith argument for changing the law
not for improper reason
not unreasonable or unduly burdensome or expensive given the nature of the litigation.
Objective standard applies- competent attorney after reasonable inquiry into rules, law and facts

Mandatory for violations Can be against Attorney/ client/ or both (not law firm)
Court has discretion on what kind of sanctions:
Cost, attorneys fees
Fines
Strike or bar discovery
Merit Sanctions
Give judgment to one side or the other on part or all of the case.
Etc. also R37(b) Sanctions

Automatic Disclosures Later in Suit
Experts expected to testify
Report
Identification
Qualifications
Opinions, data, and exhibits
Cases testified in previously
Payment
Can depose after receive report
Trail witnesses and exhibits
Close to trial (30 days prior)

Discovery Devices
Oral depositions
Written depositions
Interrogatories
Requests for production of documents (inspect premises and polluted water)
Requests for admissions
Requests for a medical or psychological exam.

Rule 30 - Oral Deposition
Oral questions to witness which witness answers orally
Party or nonparty
Nonparty – you need subpoena
Limit: 10, 1 day each
Unless written stipulation for all parties or judge’s permission
Recorded: written, videotaped, telephone with permission
Objections
Some have to be made at time of deposition if correctable then (form) or waived
Vague answer that can be followed up
Substantive (relevance, priviledged, etc.) can object at trial.
Good because you can do follow up questions for better answers
Can ask to see the transcript and ask to put corrections in.
You must put why it is being corrected.

Rule 31 - Written Depositions
Work like oral depositions except you write questions.
The one being depose answer orally
Not very functional because there are no follow up questions
Sometimes used to verify documents

Rule 33 - Interrogatories
Written questions that you send to the other party and you get written answers
Only sent to parties, not nonparty witnesses
Specific questions
Limit: 25
Subparts are ok
Objections must be in writing with reasons
Can make documents available instead of answering questions
You can’t just dump entire file room on the employee
You have to sort out most of the information for the party.
You can ask contention questions
“How C.P.’s discharges cause a nuisance.
A way to get around attorney work-product.

Rule 36 – Request For Admissions
More like pleading than discovery: once something is admitted, the admission is binding and that issue is considered resolved
The strongest form of discovery
If you admit something, you don’t have to prove it
You can’t change your mind unless you get the courts permission to change
If its reasonable to get that information you have to get it.
If you leave them blank they are admitted.
Have to admit or deny
Left blank is an automatic admittance
Request to admit truth of relevant facts asserted
Requests to admit opinions or conclusions applying law to facts are okay.
Served only to parties
Rendered on Oath (like other forms of discovery).

Purpose
To expedite trials and save cost of proving facts at trial that are not in dispute.

Self-Executing (If left blank, it is admitted)

No limit on a number of requests.

You have to show that the investigation will be too costly or burdensome to not answer.
There is an obligation to conduct a search.

Once admitted cannot contradict without the court’s permission (unlike other forms of discovery)

Done by notation
Must have a legitimate reason for doing it, not arbitrarily.
If withdrawal subserve merits and discovering party fails to show prejudice
Court applies the abuse of discretion standard

Good to lock down the other side

That way there are no unpleasant surprises
There is less that you have to put together after admissions

If deny and requesting party later proves truth of assertion, court can assess costs, including attorney’s fees for proving assertion against denying party.


After conference
Get out initial disclosures under Rule 26(a)
Only stuff you may use in support of your case.


Depositions
When you get a parties deposition
You can use it for rebuttal proposes
Contradictory statements
When a witness is unavailable
Use the deposition to put the testimony on
You can use only what you want to
Other party can include questions you left out
Have to give reasonable notice that you are going to give the deposition
If you mess up on a deposition you get stuck with the court
i.e. If you don’t show up.

Production of Documents
On parties
Rule 34 request to produce documents and tangible things
Non parties
Rule 45 subpoena duces tecum
List documents you want from that witness
If you object you have to put the objection in writing with the reason.
Can Request
Documents
Tangible things (sample, video, recordings, etc.)
Entry on property to inspect
Covers documents and items within the custody or control of party
Not have to be in party’s possession if party has right to obtain possession
Can’t hide it in attorney’s office.
Obligated to produce the documents

Can produce documents or provide access to them for inspection or copying
Can produced organized an labeled as requested or a kept in the ordinary course of
Business. (Board of Ed of Evanston).
Option available to both parties
Requesting party can specify
The court doesn’t examine the part where the parties agreed
You’re stuck and the party gets it
Other requests
If relevant then it is allowed to be discoverable.
They allow the requesting party to decide what form they want to documents in.
Courts are liberal so long as it is relevant regardless of costs

Rule 35 - Request for a Physical or Mental Exam
Must be done on a motion
Treating physicians are not considered expert witnesses expected to testify.
You have to show Good Cause
and
that it is In Controversy (Rule)
You can’t overstretch on people’s privacy

Applies on to parties and persons under their control
Judge has right to pick neutral doctor.

Medical Reports
Movant is entitled to all prior and future reports on examined parties condition if:
Party agrees to exam,
or
Party, subject to exam on Rule 34 motion, asks for report of examining physician
Party waives doctor-patient privilege
Movant also deposes examining physician

If party being examined wants a copy of the physicians report they are entitled to it.
If she asks for it she waives all her doctor-patient reports on that illness.
(Prior and future).
The asking party wants all reports.

Duty to Supplement
Disclosures, Interrogatories, Documents, and Admissions (not in depositions)
There is a duty to supplement
Must supplement if there is a material admission or if it is incorrect
An important mistake
Unless the other side already knows about it.

Witnesses can get their own statements that they sign off on.
A recording or videotape that they made a statement on.

Rule 37 - Discovery Sanctions
If there are two Rules that overlap are applicable (26(g) and 37)
You can use both
Courts don’t want to get involved in discovery so they pose strong sanctions on it.
Encourage the parties to do what they’re supposed to do and do it correctly.
Court could issue an order of admissions and attorney’s fees, or issue an order to
compel.
Taken away any benefit how would get
Ensure abuser does not benefit from the violation
Specific deterrence
General deterrence

Rule 26(g) – Rule 11 for Discovery
Rule 11 for discovery
Difference from Rule 11
No 21 day safe harbor period
Sanctions mandatory for violations
Costs and attorney’s fees incurred by violation generally assessed and
paid to other party rather than to court
Attorney or unrepresented party making discovery signature requirement

Where a false certification is made in violation of 26g (complete, correct disclosure/proper, lawful requests), court must impose sanction, which may include order to pay amount of the reasonable expenses incurred because of the violation, including attorney fees. 26g3 (in contrast to Rule 11 where court has discretion to impose sanctions or not)

Remember that rule 26(g) attributes to every attorney signing a discovery request, response, or objection an automatic certification based on a standard of reasonable inquiry, and this provides further support for the NEGLIGENCE standard.


Signature Condition
Consistent with rules and warranted by existing law or a “good faith” (objective standard applies) argument for changing the law
Objective standard
Competent attorney after reasonable inquiry into
rules, law, and facts
Not for improper reason
Not unreasonable or unduly burdensome or expensive given the needs
of the case

Sanctions
Mandatory for violation
Against attorney, party, or both
Court has discretion on what sanction
Costs & attorneys fee
See Rule 37(b) sanctions
Fines
Strike or bar discovery
Merit sanctions

Rule 37(a) Parties have not violated the Rules (Failed to Make a Disclosure)
1. Where party fails to make a disclosure or cooperate in discovery and the discovering party has made a good faith effort to secure the disclosure without court action, the discovering party may move for an order compelling disclosure or discovery 37a
i. Motion is made in the court where the action is pending, or for nonparty, to the court in the district where the discovery is taken.
ii. Where party fails to make automatic disclosure under 26a, can move to compel disclosure and for sanctions. 37a2A
iii. Where party fails to answer interrogatory or fails to respond to inspection request, or fails to permit inspection, discovering party may move for an order compelling answer, order compelling inspection. 37a2B


Motions for orders to compel discovery
Motions for protective orders
Usually made after an order to compel
The rules require that before you can make a discovery motion (bother the judge) you must confer with the other side.

Assessment of costs and attorneys fee against the loser applies
UNLESS
Opposition substantially justified, or
Unjust
Court may apportion expenses and fees between parties if motion
granted in part and denied it part

Rule 37(b), (c), (d) Sanctions (Parties have violated the rules or a court order)
1. Rule 37(b) - Failure to comply with an order 37b
1. if deponent fails to be sworn in or to answer a question, after being directed to do so by court where depo. Taken, can be considered contempt of court 37b1
2. failure to obey an order to provide or permit discovery  court can make orders with big impact on out come of lit. including 37b2 A order that matters regarding which order was made be taken as established for purposes of the action; B order refusing to allow disobedient party to support/opposed designated claims or defenses, or prohibiting party from introducing certain matters into evidence; C order striking out pleading/parts of pleading or staying further proceedings until order is obeyed; D order treating as contempt of court the failure to obey an order (except order to submit physical/mental exam.)
3. + pay expenses inc. atty. fees caused by failure

2. failure to disclose; false/misleading disclosure; refusal to admit 37c1
i. party can’t use information it didn’t disclose as evidence; and court may impose other sanctions including expenses (inc. atty fees).; + court can impose sanctions under 37b2A, B, and C + can inform jury of failure to make disclosure

3. failure to admit the genuineness or truth of any document or matter 37c2  if discovering party then proves the genuineness, can seek expenses, and court shall make the order requiring expenses unless (4 factors).

4. failure of party to attend own deposition or serve answers to interrogatories or respond to request for inspection 37d

Willful absence so the fines were properly administered
Outside limits to the due process clause
The right to sue cannot be arbitrarily taken away from you by the court.

5. failure to participate in the framing of a discovery plan 37g

Purpose of Sanctions
Adjusting the rights of the parties so that the disobedience does not create an advantage
Specific deterrence of future violations by other parties
General deterrence

Levels of Sanctions

Merit/severe sanctions
Dismissal (all or part)
Party wins (all or part)
Intermediate
No proof on discovery topic
Other side wins on discovery topic
Strike evidence
Contempt
Can only be assessed if the party has actually disobeyed a court order
Less Severe
Fines
Reprimands
Orders to comply
Costs and attorney’s fees (generally awarded)
Other

Pushing
Overburdening discovery requests
Tripping
Unreasonable refusal to comply with discovery



Rule 12(c)

End the law suit after the pleadings are closed
So it must be fair
Will be granted only if it is clear if Movant is entitled to win

Court will grant if
no material issue of fact that would require a trial
And
the Movant is entitled to a judgment as a matter of law.
End the law suit after the pleadings are closed
So it must be fair

Treat the non-movants facts as true
Movants facts are taken as false


Rule 56 – Summary Judgment

What is it
When it will be granted
Who has the burdon of proof
What policies are served

Summary Judgment
Simply means entry of judgment without trial or specific fact finding by the court, with or without a jury. Many of the Rules are designed primarily to regulate the litigation process and not to resolve the dispute itself.

Step 1:Will be granted when there is:
No genuine issue of material fact
Movant is entitled to judgment as an issue of law
Judge can’t judge credibility
That’s for the jury

The judge will decide the case based on the applicable law and the facts as stated in the pleadings.

Both parties
Plaintiff – 20 days from beginning of law suit or after service of a SJ motion by the
defendant
Defendant – May make a motion at any time.


Step 2: Define
Genuine Issue
One on which reasonable minds could differ
Material Fact
One that may change the outcome
Is entitled to judgment as an issue of law

Step 3: Pleadings, admissions, law, affidavits (personal knowledge and sworn), discovery
documents (if authenticated) and the discovery evidence.

Because we’re taking a right of trial away we need reliable evidence.
That’s why documents must be authenticated.

Burden of Proof

1. Movant has the initial burden of material fact
The movant bears the burden of proving that there in NO evidence to support the
nonmoving party’s case.
If it doesn’t get over the net the game cant keep going on.
Non-movant doesn’t have to do anything (not having to come forward with any evidence).

2. If the Movant gets past the initial burden then the nonmovant just can’t rely on
pleadings and denials and admission;
Nonmovant has to show that there is an genuine issue of material fact
They have to return the serve

3. If the nonmovant gets the ball back over the net the judge has to decide whether there
is an issue of material fact or not.



Evidence

How good does the evidence have to be
To Win before trial
Movant - Evidence has to be good enough to go to trial with. Non-movant – If it can lead to admissible evidence it can be good for
summary judgment.

Whenever reasonable minds could differ the case should go to trial

Evidence will be viewed in a light most favorablw to the nonmovant.

The non-moving party may not rely on allegations in the pleadings to defend summary
judgment
It needs specific facts and not allegation to defend the motion.

Discovery

The court is obligated to give the nonmovant an adequate opportunity for discovery.
To obtain facts required to oppose a summary judgment motion.

Rule 56(f)
Affidavit to extend the time for discovery must specify what the party expects to
obtain from discovery, and why such information hasn’t yet been obtain.
Form of affidavits Rule 56(e)
Made on personal knowledge
Set forth such facts as would be admissible evidence in trial
Show affirmatively that affiant is competent to testify to the matters stated
Quantity of evidence doesn’t matter – anything on the other side that is admissible and directly deals with
material fact is sufficient to show genuine issue of fact.
adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response must set forth specific facts showing that there is a genuine issue for trial

if successful  judgment rendered on all or part of it
example of partial: sj on issue of liability when there is a genuine issue as to the amount of
damages  interlocutory s.j.

where granting of motion only partially adjudicates the case, judge shall set out facts that appear
uncontroversial, deem them established, and direct the trial thereafter accordingly 56d

Court can opt to delay ruling on motion or order a continuance where party opposing the motion can’t
produce facts essential to justify opposition for a good reason 56f

Where affidavit made in bad faith  party pays costs which the bad affidavit caused 56g

Celotex Corp. v. Catrett (1986) revolutionized summary judgment: (case involving exposure of deceased husband to asbestos) Supreme Court held that it is sufficient for Defendant moving for summary judgment to discharge the burden by showing that there is an absence of evidence to support the Plaintiff’s case; D did not have to affirmatively show that there was no genuine issue of material fact.

before Celotex, it was Adickes standard: on summary judgment, moving party has summary judgment burden even if doesn’t have trial burden; Sup Crt. in Celotex claims to follow Adickes = an example of how ambitious lawyers change the law even when language of rule the same

Date:	2005-09-17 12:36
Subject:	Contracts Outline
Security:	Public
Mood:	content

Contracts Outline



I. Intent to Contract: Offer and Acceptance



1. The principle of mutual assent.

Contract law is based on the mutual assent of the parties



Mutual Assent

If there is no agreement there is no contract: term of objective manifestation.

Look at detail and what is expressed

Must look at what a reasonable person would think in similar circumstances

Exist when implied-in-fact contract is made through an intrepetation of

surrounding circumstances including declarations of the parties and their

conduct.



Objective v. subjective theory

Most contract law is governed by objective theory

Asses various aspects of the offer-acceptance agreement by what a

reasonable person would see.

Would a reasonable person conclude that an acceptance had been made

Reasonable person in the position of one of the parties

Intention is irrelevant.

Rationale

Administrability – The importance of protecting the parties’ reasonable

expectations in relying on a promise, and the need for security and certainty in business transactions, make it impetrative that each contracting party be able to rely on the other party’s manifested intention. (Lucy v. Zehmer).



Negotiation

Agreeing to a deal or working one out.



To form a contract one must have completed negotiations and both parties have expressed the points of the contract that they find essential.



Still negotiations if there is any contemplation.







2. Express and Implied Contracts



Express Contracts

If mutual assent is explicitly written or oral then it is express.

Implied-in-Fact

If the promises of the parties are inferred from their acts or words that are not

explicit the contract is implied-in-fact.



The manisfestation of the party implied that there was a deal, but no verbal or

written expression of a contract.

Mutual Understanding



Look at all factors that led to an understanding

Build on the surrounding circumstances

What factors to see that you have a functional equivalent of

the parties consenting (no express) (Stepp v. Freeman).



II. The Offer



1. Has an offer been made.



If an offer is made, the offeree has the power to conclude the agreement, bind the offeror, by assenting in the correct manner. (Promise or performance).



The manifestation of the willingness to enter into a bargain so that the other person can be permitted to acceptance.

Look to:





What Constitues an Offer.

An offer is an expression to enter into a bargain, so that a reasonable person

would conclude that he/she could acceptance.



Two Elements

1. Intent to enter into the Bargain.

Must be distinguished from an invitation to deal.

Factors the court based its opinion on

course and substance of the negotiations,

prior dealings,

customary practices in the trade or business, and the formality and the completeness of the document. (Leeds v. First Allied).

(i.e. words such as “are you interested,” “would you give,” “I quote,” or “I would consider” suggest invitations to deal and not offers.)

Words Suggesting an Offer

“I will sell or I offer to” suggest an offer is intended.





1. Definiteness of Terms

There must be clear

subject matter of the proposed bargain (bonds)

the price, and

the quantity involved. (Leeds v. First Allied).

Language of commitment

Who is it being made to.

How specific is the offer

Is price stated

Method payment

Delivery, and

Surrounding circumstances

Unilateral and Bilateral Contracts



Unilateral

An offer that seeks performance

Requires performance as acceptance



Bilateral

An offer that seeks a Promise

Best if answered with a promise.

Basic premise: one may accept and offer in a way that the offeror

seeks.

Some courts say that if performance was done within the time frame requested, then performance could create a contract.











2. Advertisements and Solicitations.

Advertisements are normally viewed as invitations to deal, not offers.



Rationale

Social - Advertisements are usually indefinite as to quantity (see above)

Advertisements are typically addressed to the general public.

There could be more accepters than items for sale.

Exceptions to the Rule

Some advertisements may be construed as offers.

If the circumstances clearly indicate

an intention to make a bargain,

The advertisement invites those to whom it is addressed to take a

specific action, or

overacceptance is unlikely. (Lefkowitz v. Great Minneapolis Surplus).

(It is definite in terms, and invites those to whom it is addressed to take action (those first in line), no problem of overacceptance since number of coats was specified).





3. Written Contract to Follow

A writing is sometimes required by law. (Statute of Frauds).

Some parties do not intent to be bound until a writing was complete.

(Continental v. Scott)

Factors of Intent

1.Whether the contract is of a class usually found to be in writing,

2.whether it is a type needing a formal writing for its full expression,

3.whether it has few or many details,

4.whether the amount is large or small,

5.whether the contract is common or unusual,

6.whether all details have been resolved, and

7.whether the negotiations show a writing was discussed or contemplated.



4. Termination of the Offeree’s Power of Acceptance.



1. Termination by expiration or lapse of time

A reasonable period of time (varies at each circumstance)

Face-to-Face - offer ends at the end of the discussion.

Does not extend beyond the conversation unless otherwise noted.

Mail - usually 7 days from the time you receive it. (he took the risk of mailing it)

Telephone – when the conversation ends





Where no time for acceptance in fixed

The offeree’s power of acceptance expires after a reasonable time.

Reasonable time – Depends on the circumstances (Loring v. Boston).





2. Termination by rejection from offeree

Statement of offeree that does not intend to accept the offer.



3. Termination by counteroffer

An offer made by the offeree that concerns the same subject matter, but under different terms. Terminates the power of acceptance.



Inquires

Power of acceptance is not terminated by inquires or a request

for different terms.

Reasonable Person Test – would a reasonable person in the offeror’s

position think that the communication from the offeree was an offer

that could be accepted.



4. Termination by revocation of the offeror

a. Revocation terminates the offeree’s power of acceptance

i. Can revoke up until the time of the acceptance

ii. The power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires information to that effect.

1. Section 43



When Revocation is Effective

Revocation is effective when received by the offeree.

Communication of Revocation

Revocation must be communicated from the offeror to the offeree

Exceptions

Offer to the public – Publish revocation by the same

medium in which the offer was made

Indirect Revocation – The offer is revoked in the

offeree obtains reliable information that the offeror has taken action showing that he has changed his mind. (Dickinson v. Dodds).

Revocability of “firm offers”

A firm offer is to remain open for a certain period of time. A revocation
of a firm offer has the same effect as the revocation of an ordinary offer despite the fact it was to remain open. (Dickinson v. Dodds).

Rationale – A promise without consideration is not binding.

Exceptions

Options – If the offeree gives consideration for the promise, the offer is irrevocable for the stated period.

Nominal Consideration – An offer is irrevocable if it recites nominal consideration.



Revocability for offers for Unilateral Contracts



Three Schools of Thought

1. Harsh Rule – An offer was revocable until the offeree had completed

performance of the act specified in the offer, even if performance had

begun. (Petterson v. Pattberg).

2. Favored Rule – An offer cannot be revoked once performance has begun,

unless the performance is not completed within a reasonable time.

(Marchiondo v. Scheck).

Rationale – An offer for a unilateral contract includes an

implied promise to hold the offer open for a reasonable time if the offeree makes a substantial beginning of performance prior to revocation. Restatement Section 45, creates an option contract.

3. Disfavored – The partial performance where an offer seeks performance

creates a promise to complete.



Preparation

A problem arises when the offeror revokes after preparation but before

performance.

Go by manifestation of intent.

Lack of answer can be acceptance by silence.

Late acceptance can’t be acceptance because time has lapsed, it could be a new offer.



Revocability of Condition Precendent to Performance

Contracts formed when both are signed, but until approval no duties are required, can escape from deal if performance is not satisfied.



Revocability of Condition Precedent to Formation

That until the approval is made or contingency is met there is no contract, not even the shell of an agreement exists.

Until home office has signed, there was no deal because it was not signed; therefore the offeror had the right to revoke. (Beard Implement).





When there is ambiguity of promise or performance

The offeree gets to choose how to accept the offer.

Restatement 32 and 62





Acceptance



Knowledge of the Offer

You have to have knowledge of the offer to accept it.

Restatement 51



Notice: When an offer seeks a promise you have to let the person know (Section 54 and 56).







Acceptance by Silence



Cannot condition acceptance on one’s silence.

Section 69

Sell you pen for $30, just say nothing if you want it.

Promise to sell pen, silence is acceptance

If he doesn’t want the pen, he can’t be held him to it

If Chad is silent and accepting it intentionally he can get it.



Two Theories

Majority - Punishing the offeror

If he doesn’t want it, his doing nothing can not be acceptance

If he wants it he has it

Minority - Can’t hold either party liable

If you can’t hold the offeree liable, you can’t hold the offeror liable.



Exceptions

How can acceptance by silence be accepted

Person laboring day after day

Inure to his benefit

Knowing the laborer expected pay for his work

When it was easy to notify him if his services were not wanted

Even when it was not expressly proved







Postal Reorganization Act







Mailbox Rule



The Mailbox Rule

Where mail is an effective method of acceptance and/or communicating then an acceptance is effective on dispatch even before it has been received; rejection by the offeree and revocation by the offeror are effective upon receipt.

Exceptions



Restatement 40 (Exception)

when rejection is sent first, before the acceptance is received, and received before the acceptance is received then no contract is formed; a counter-offer is formed. The acceptance then can become a counteroffer and the circle is closed.

RS AS RR AR





AS RS RR AR – Contract, however the offeror is protected if he sold it to a third

party. If offeror could have relied on the rejection.

Once an acceptance, do the courts then protect the offeror.

If the offeror gets it and relies on it, then the offeror sells it to

a third party the offeror is protected.





Option contracts – the acceptance is valid upon receipt because he is already protected by the option, because the offeree doesn’t need the protection. There is an absolute point in time. Both parties traded maserty.



Making an option that is revocable and making it irrevocable.

Improper Mail, improper postage, etc.

Negate the rule that acceptance is effective upon dispatch

Exception to that Exception

If the letter or acceptance gets there in the same amount of time that it would have been if it were properly mailed then the mailbox rule applies.

Counter-Offer

A counteroffer acts as a rejection of the original offer.

A rejection of the counteroffer may act as a renewal of the original offer







Option Contract



An offer has been made that is irrevocable until acceptance (holding an offer open).

A contract within a contract



If one has an option, with consideration, on a contract it is irrevocable



What if you have the option for 30 days, on the 15th day a rejection.

Two Theories



Majority - Bought all 30 days or creates reliance. Restatement 37

Minority – Bought the time to answer.

Shouldn’t be able to accept and then reject

So why should you be able to reject then accept



Mirror Image Rule

If you alter the offer in anyway then it becomes a counter-offer/rejection.

Rejections terminate the power of acceptance.

Any change in the offer, no matter how minimal, constitutes a rejection/counteroffer.

(Sections 38 and 39).

Neat, but harsh

Grumbling Acceptance is not a counter-offer.



Exception/Qualifier

Modern cases have watered down the mirror image rule to any change

that is material.

Mode of the courts to preserve the contract and not void it



Article 2-207



Can go from 1 to 2, and 1 to 3, but not 2 to 3.

Subsection 2 presupposes a deal, 3 doesn’t.

Buyer is the offeror and the consumer

Erring on the side of preserving the contact.

Comes in when someone accepts and contract and has tinkered with it a little.

Dicker terms – heart of the offer; critical parts of the deal, description, quantity.

That will be a counter-offer.

Is there still a deal, and if you do you have to do something about other term.

What to do with the additional or conflicting term



Questions

1. Is there a definite or seasonal expression of acceptance.

Try to find out if we can preserve a deal, trappings of a contract

Definite – something that repeats the principle terms of the offer.

Buyer and Seller, price, quantity, and description.

Seasonable – 1-204. Reasonable period of time.

2. Does it contain any additional terms

Battle of the forms

3. Has the acceptance been made expressionally conditional on assent to

additional terms.

Need “expressly conditioned upon assent.”

If the buyer doesn’t give actual assent, actions are not enough then no

contract and a counter-offer is made. Explicit conduct to accept.

If term doesn’t say expressly conditional on assent

Then look to subsection two.

What to do with the additional terms.

4. The first sentence assumes a non-merchant contract.

If merchant to non-merchant the term is only used as a proposal. The proposal can only be accepted explicitly.

5. If both merchants then look to 2(a,b,c).

The terms become part of the contract

Unless

-The offer expressly limits acceptance to the terms of the offer

-They materially alter it. (If it materially alters it it should be a

counter-offer), but not so materially that it affects the dicker

terms. (i.e. no warranty and an arbitration clause). Change in

a peripheral term that materially changes the offer. Need a

contract to get to this point. The offeree’s terms

- Notification to additional terms has already been given or is

given within a reasonable period of time. (Objecting to

arbitration clause).

If any of the three are missing then the terms are included into the

contract.

6. Subsection 3. Conduct by both parties which recognizes the existence of a

contract is sufficient to establish a contract for sale although the writings of

the parties do not otherwise establish a contract.

Conduct contract.

Additional Clauses

The contract consists of those terms on which the writings of

the parties agree.

If you haven’t agreed to it, its not in the contract.



Last shot theory - offer by conduct. Last expression controls the terms

of the agreement. Made null by subsection 3.

Only contains the terms on which the writings of the parties agree.



If terms conflict they only apply to subsection two (definite and

seasonable expression of an acceptance), not three.



Conflicting Terms – The code does not answer it. It only says

additional terms

In a writing in subsection 2 you just knock them out,



Three Theories

1.You never defrock the offeror of his term without his assent.

Offeror’s terms prevails. Similar to a proposal.

2. Treat different terms exactly as additional terms by going

through subsection 2. (Offeree can win if no unless).

(Offeror’s original term may be a definite expression,

materially alters it, or it is notification).

Section C. That is giving notification of objection.

3. The conflicting terms are knocked out.



If offeree says my acceptance is made on your assent is a counter-offer. No key.

Can you end up with a contract.

If the person accepts the goods.

Assent to the counter-offer



Indefiniteness



Contract is supposed to be definite

If you have indefiniteness on an essential term the contract could be null and void.

The code and the common law err on the side of forming the contract.

May input some information.

There still must be some intent to agree by both parties







Hardest Terms to Fill

Duration

Quantity



More Likely to be Filled

Method of delivery

Method of payment





Types of indefiniteness

Less Essential------------------------------------------------------------More Essential

(Liberally add terms)



Inadvertent omission

Car sale – leave out where it will be delivered or when it will be picked up.

The court is more inclined to fill in the term then they would be on an agreement to

agree.



Agreement to agree

This is not an agreement because you still have not agreed.

Article 2 situation provides a whole bunch of fillers

2-311, 2-306, 2-309, and 2-204.

Code is friendlier to filling in terms than the common law.



Gap Fillers and Implied Terms

Gap Filler – If there’s a gap here are the means for the test. Finding ways of providing

source outside of the agreement.

Implied – Derived from the body of the agreement.



When Seeking Specific Performance as Opposed to Damages

More difficult for a court, in good conscious, to provide a remedy when a clause is

indefinite.

How can the court say what someone should do when the contract doesn’t state what that

person should do.



Agreement to Agree and Letter of Intent

Does not dictate what the agreement is.

Have to go to the intent of the parties to constitute whether an agreement is met.

“What do you want?” “I don’t know, we’ll decide it later.”

The terms of the contract haven’t been made yet.



Three Approaches to Filling Gaps

Strict Reluctance – Walker v. Keith

More Liberal – Rego v. Decker

Good Faith Bargaining - Will not enforce the terms, but you have to go back and work

out the deal.





Consideration



A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.



A written promise to hold something open is a consideration.

Must be some element of exchange.

Difference between detriment in fact and legal detriment

Penn State game.

Agreeing to take him was giving nothing up.

Giving up your right to not spend $25, giving right to stay home.

A. Legal Detriment

Fact that you were going to do it anyway doesn’t change it.

Give Up something you could have had is good enough.

Induced a promise

B. What the person was giving up ($25) is the reason you made the promise (drive).

C. Relaxed standard.

D. Detriment in fact

Involves whether or not you have changed your position. Did something you normally wouldn’t have done.

E. Promise inducing a detriment

Even if you were gonna go anyway?

The courts are very liberal when it comes to inducing the detriment

variable.

Will assume that the promise induced some detriment

Each promise most have consideration.



Sufficiency and Adequacy

One is suggestion there is value – Sufficiency. (fungible or not).

If they have a separate use. Need deficiency of sufficiency.

One suggests a quantitative value – Adequacy

Courts won’t get into it.

Failure of Consideration means that you failed to do whatever you were gonna do.

A performance issue.

Want of consideration

There is no consideration



What if it may be a sham

Blackacre for $1

It can go both ways.

Slippery slope, or

A gift



Restatement 87

Branco



The doctrine of inadequacy of consideration to void an agreement, does not apply to a mere exchange of money whose value is fixed. It only applies to some other thing of indeterminate value.



Forbearance

The surrender of, or forbearance to assert, a valid claim by a person with an honest and reasonable belief in its possible validity is sufficient consideration for a contract (Fiege v. Boehm).

You have to have a valid claim if you are to have consideration.



Subjective good faith

Objective good faith

Court said no proof a bad faith.

Restatement 74 (2)

Goes against the basic notion of the surrendering of a claim.

Consideration if the execution is bargained for.

Bargained for the signature



Implied Best Effort

The finding of an implied promise within a contract (for the purpose of establishing sufficient consideration to support an express promise) can be used to uphold agreements, which may appear to be illusory. While an express promise may be lacking, the whole writing may be an implied promise and may form a valid contract.



Court says there is an implied best effort. Why would you make this deal if you didn’t want to make money; he intended to do something. (Wood v. Lucy)





Three Ways to avoid an illusory promise.

1. Imply best, reasonable, or good faith efforts

If you reached an agreement then you wouldn’t agree if there was no intent to fulfill that agreement. It is instinct with obligation. He wouldn’t have make the contract if he wasn’t going to do something. (Wood v. Lucy)

“I’m going to do the best I can to get to it.”

Courts infer that you will make something or do something.

Implied best effort saves the contract.

2. Can cancel at will whenever.

A counter-promise would not be supported

Courts have negated illusory, implied that there is a notification of

Cancellation

Have to give notice (giving something up)

3. Forging a good unilateral contract from a bad bilateral contract

Promise to pay $50; if I feel like it, I’ll mow your lawn.

You mow, I don’t pay.

I have to pay.

It becomes a good offer seeking performance (unilateral contract).

You got what you wanted.

Should he recover on the promise?

Court may pretend it’s a unilateral contract.

He wouldn’t have wrote it if he didn’t have intent.

Saved the parties from themselves.





Unilateral Right to Cancel

Right to cancel

There was no detriment at the part. So there is no consideration.

There was no intent to deal.

Two Ways to Respond

- If you say you have to give notice then you suffer the detriment of

giving notice.

- At any time doesn’t mean at any time, it means that any time with

notice. They infer a notice requirement.



Pre-Existing Duty

If the detriment has already occurred before the promise then there is no

consideration.



Moral Obligation

A moral obligation may only form consideration for an express promise in three cases: (1) debts barred by the statute of limitations, (2) debts incurred by kids, or (3) debts previously discharged by bankruptcy.





Exceptions to the Past Consideration Doctrine

1. Statute of Limitations

a. When statute has run and you never collected.

i. You’re owed something and the person says I will pay you anything. Sections 82 and 86

ii. Courts will enforce that promise, many require it to be in writing.

iii. Promise to Pay a Debt Extinguished by the Statute of Limitations.

2. Debts that have been extinguished by bankruptcy.

a. Bankrupt person doesn’t have to pay any longer.

b. If person promises to pay a creditor afterwards, then the promise is binding.

i. Still should be in writing.

3. Promises that may have been voidable

a. If someone is under 18 and they have an obligation

i. Later the person when reaching majority agrees to pay.

1. Promise is valid.

2. Has to be in writing.

4. Moral Obligations

a. Services requested, benefit conferred, legitimate expectation of payment.

i. i.e. Stalled along the road. Mechanic comes by and fixes it.

1. Say I’ll give you $100.

2. Subsequent promise may not be valid, but moral obligation says you should pay.

3. Implied-in-Fact contract

a. But where is the offer and acceptance.

4. If there was no subsequent promise, would there be money due.

5. We presume in non-family situations, there is an expectation of payment for request of services.

b. Guys car is stalled, but not there. Mechanic sees it a fixes it.

i. No implied-in-fact contract.

ii. Some courts would say that a subsequent promise to pay should be enforced.



c. Two Realities

1. Get no recovery under strict application of the consideration rule. Mills will happen more than McGowen.

2. Moral Obligation doctrine is alive and well. It just does not exist everywhere. It can happen in many, but not the majority.



Restatement 86 and McGowen there is the doing away off strict application.

Both reflect a moral obligation principle.

If it would be considered a gift.

The promisor was not unjustly enriched, he was getting a

block dropped on him.

Unjust enrichment should not be assumed.



Third Party Cases

Third party cases

A third party gets involved

$50 to mow lawn. Promises made.

Later guy 2 says to guy 1 I’ll give you $50.

Guy 1 already had a pre-existing duty to mow the lawn.

There was no detriment induced by the promise



Two Views

There was a preexisting duty.

Second restatement

He’s collecting from everyone

Minority view

No preexisting duty in the second situation because the first contract in unilateral.

He has absorbed no duty because he doesn’t have to do it.

Promise runs from the promisor to the promisee.

The first agreement was just an offer. His detriment is the performance; until he performs the first

contract doesn’t start. No preexisting duty on conseration grounds.



Accord and Satisfaction

I owe you money. You threaten legal action. Will you let me off the hook if I pay you some of it.

If it is good depends on whether I offer you something different or not.

Ex. 1 I owe you $100.

I say I owe you something different, like $45.

You say its wrong.

I say if I give you $60 will you let me off the hook.

There is an accord and satisfaction.

A dispute was settled.



Ex. 2. I owe you $100 and I admit to it,

I say if you let me off the hook I’ll give you $60.

There was no compromise, therefore you can sue me.



Ex. 3. I know I owe you $100.

If you let me off the hook you can have my hawk.

Fine I like the hawk.

He cannot collect the difference between the hawk and $100.





Executory Accord



Car Accident

Promise not to sue me I will pay you $5000.

You have to surrender any claim that you have.

The surrender of that claim will occur upon the satisfaction of the accord.

What are the choices in that situation

Sue on the $20000

Sue for the performance of the contract, $5,000

The key to the contract is the satisfaction

This preserves the right to go back after the claim.











Substituted Agreement

It says that the initial cause of action or the deal ceases to exist upon the execution of a new agreement.

All other claims are discharged.

How is it different.

You can only sue on the substituted agreement, not on the accident.

The first agreement has been replaced by the new agreement.

As of today, in exchange for my right to sue, you will pay me $5,000.

Language has to be explicit.

Can never sue on the original claim because it has been substituted by the $5,000 agreement.



Check Cashing

Ex. 1

$100 bill

I send you a letter that says I owe you $50.

Here is a check for $70 saying paid in full.

Can’t come after, paid in full and check cashed is an acceptance of a release.

Check cashing is the discharging of the obligation (Will you discharge my

obligation, yes when I cash it).

Compromise is the consideration.



Ex. 2

$100 bill

I know I owe you.

Here is a check $70, paid in full.

Can come after

There is no dispute.



Ex. 3

$100 bill

I know owe you $100.

There is a hawk inside.

You agree that the Hawk will substitute.

If you try to sue you can’t get it because you accepted the Hawk.

It was a non-fungible exchange



Ex.4

$100 bill

I only owe you $50

I send you $50 marked paid in full.

Split

Some courts say there is no consideration, He only paid what He had to.

The second view is that there is a dispute means that there is good

consideration because there is a dispute.



Ex. 5

$100 bill

I say, I don’t think I owe you $100

Here is $85, there is no paid in full.

You can pay for $15. No manifestation of paid in full.



Promissory Estoppel



Used as a substitute for consideration, but is not consideration; therefore a contract has

not been made.



Was there a promise

Was it justified

Is there a reasonable expectation



Stops people from not enforcing the promise

Section 90



Two rabbits example

Giver says I’ll deliver rabbits tomorrow

Farmer goes out and buys a rabbit hutch

Next day giver changes his mind



The farmer says I relied on this. I wouldn’t have built a rabbit hutch if you didn’t say you were going to give me the rabbits.

Usually go to enforce the promise, not the monetary damages.

There was no contract, but there was reliance. Shouldn’t the guy be

allowed to get something.



What should the relief be

“you promised theory” – should get the whole thing

Problem is that you made a contact where none existed



Or



He should get what he spent

Rewarding the promisee to the amount that he relied.





You can hardly ever estop the government



Equitable Estoppel

A fraud concept when someone misrepresented something and one relied on the representation.

Promisee relied to their detriment and was owed something.



Construction/Contractor

Section 87

































Statute of Frauds



Certain Exceptions when an oral contract isn’t valid

Executorship

Suretyship arrangement

Made in consideration of marriage

Real Estate Deals

Any agreement not to be enforced within one year.

2-201 (different statute of frauds).

Must all be in writing



Suretyship

Tries to take care of someone’s debt for them.

A third party.

Prior obligation

3rd party says I’ll take care of the debt

Putative helper

Agrees to pay for the debts of the debtor

1.Not in a Novation

A tripartite arrangement whereby a creditor releases the debtor in exchange for a new debtor in substitution.

(Substitute agreement)

2.The arrangement is between the 3rd party and the debtor

Not a suretyship.

Buy what you want and if you go over, I’ll take care of it

Parents and Children.

3. Leading object/primary purpose doctrine (benefit)

A deal that a 3rd party makes with a creditor to ensure the payment of the debt, but the 3rd party benefits from the deal. (Yarbro v. McGinnis).

4. Where there isn’t a joint obligation

Creditor has to go after both parties, it is not a suretyship.

If it is joint and several (one or all of us) it will be ok.

Can go after either of them.

5. Where parties have no understanding

Parties have to have an understanding



One Year Provision

Contracts that cannot be performed within one year need to be in writing

Has to be impossible to perform within one year.

Absolutely cannot be performed within one year.

Probability is irrelevant. It needs to be definite



Contacts of indefinite duration

Not covered by the statute of frauds

They can be done within a year.



Lifetime Contracts that contemplate death

Someone could die within a year

Split of authority



Fixed Term Contract that says two years

If it is a fixed term of more than a year then it is probably in the statute of frauds. They can not be performed within a year.

Death does not USUALLY take it out of the statute of frauds.



A set term of years, but contemplates death

1. Contemplation may take it out of the statute

Anticipated it so there was indefiniteness

2. It says more than a year. If you die it is not performance of a contract.





How the one year provision works with other statute provisions

The stricter is going to govern

1 year provision and the sale of land.



Section 2-201. If there is an exception that takes you out of 2-201.

Modern View says you are covered by 2-201 and you have an exception to the writing contract the code will reign supreme.

If you meet an exception, the writing will not be required





Alternative Performance Doctrine

Executor Bilateral Contract

Either performance will satisfy the contract, if one can’t be performed within a year, but the other can then the statute of frauds is not applicable. In those cases an oral agreement is valid. (Executory bilateral contracts).



$10,000 if you do either of two things:

Take care of the landscaping

Paint all the buildings (will have to take 15 months)

Oral contract may be enforceable because one of the two can be performed within one year.



Law Student Hypothetical

I will work for you for three years and I will be your superintendent of the property or until I fail out of school.



Courts draw a distinction between the two. The first one are both performances of the contract. The second one is that the failing to complete the contract is a defeasance, not a performance; therefore, where it is a defeasance, it is not an alternate performance.



Prevalent - If one of the alternative performances is viewed as a defeasance (not

a performance) then the statute is applicable. (So you need a writing).

Minority- Excusing the kid from performing. Escaping liability is by failing out

and it should be considered a performance.

You contemplated this, so you took that into consideration.



Full-Performance Exception

Section 130

If you fully perform, then the contract will be taken out of the statute of frauds

If you have an oral contract in which the statute applies and you perform that contract, then the contract is enforceable.

The one year provision doesn’t apply.



Part-Performance Exception

It is an estoppel type of argument. This person is on the way to getting the job done so it should be enforced.

It is rare, but used in Sales of land, occassionaly in a 2-201 section, and occasionally to avoid the harshness of the one year provision.

Wagers case shows how hard it is to apply.

You almost ALWAYS need something in writing to make it stick.


Promissory Estoppel within the Statute of Frauds

Restatement Sections 129 and 139 (versions of Section 90)

Has been used as a way of protecting parties without a written contract, but have relied upon their detriment on a promise, but can’t enforce the contract because the statute of frauds precludes it.



Is a contract void or voidable because of the statute of frauds

Crabtree – void upon creation (doesn’t exist)

Other cases say that it is voidable



Uniform Electronic Act

Validate electronic information as a way to contract.





(Crabtree v. Elizabeth Arden)

Two views

Only written documents may be considered

The other is that there can be documents and oral testimony.



What is enough to satisfy a writing requirement.

You need a relationship between the documents

Material terms

Oral testimony is needed as well (it couldn’t stand alone).

Refers the documents together with one another.

Grout to hold up the tiles



Eastern Dental v. Issac Masel

Pl. The invoices were written

Pl. We had a deal

Pl. The letter said that there were different types of subject matter (pliers to

braces).

Pl. The termination letter showed that they had a deal. (Only indicated that they had a business relationship, not a contract).

Def. – There was no quantity

Def. – The first letter said that the subject matter was different, pliers instead of

braces).





Merchant’s exception

2-201(2)

We have an oral deal. Memo sent to say I like the deal, I’m happy about the

deal.

It is written verification that there is a deal and has some specification

(Thompson v. Goodrich)

If received and there is no response

then the statute of frauds is satisfied (10 days).

If received and rejected within a reasonable time

then there is no contract.







Article 2-205

Has to be in writing

Assurance that it will remain open

Has to come from a merchant

Has to have a time limit (if none it is three months).



Merchant giving assurance is that is can be open for 90 days.

You don’t need consideration.





Negotiation

Section 82 and 86

Moral Obligations

Section 89 – Unanticipated Circumstances (almost like a new job).

Pre-Existing Duty – Good Faith it may work.

Third Party pre-existing duty.

Restatement 77

Illusory Promise

(a) mow my lawn or paint my house

a. both good.

If you have one good and one bad

$100 stop doing coke and mow my lawn.

Good consideration of one is enough for payment.

$100 stop doing coke or mow my lawn

No good consideration because one has no legal detriment.



(b) If coke become legal before he makes the decision it is good consideration.