METHODS OF

METHODS
SERVING PROCESS

Personal delivery tender of summons directly to D.

deliver to person suitable age PLUS mail a copy by

Leave and Mail
regular mail

affix to the door PLUS mail a copy by regular mail, but

SERVICE ON Nail and Mail must first attempt to serve by personal delivery or leave
INDIVIDUAL and mail

Expedient Service P may make an ex parte motion to court for an order

(임시변통) allowing an improvised method
TRADITIONAL
METHOD
Agent designated by D If D expressly specifies agent for receiving summons.

Personal delivery personal delivery to officer, director, designated agent or

managing agent. [receptionist -> NO]

For a domestic corporation, or a foreign corporation that

SERVICE ON is authorized to do business in NY
CORPORATION -> 2 copies of process to NY secretary of state
Service on NY secretary
of state
For an unlicensed foreign corporation
-> one copy of process to NY secretary of state PLUS
mail one copy to the corporation by certified mail

NON-TRADITIONAL BOTH INDIVIDUAL AND First Class mail PLUS If D does not return the acknowledgment, this method is
not effective. This method is valid regardless of whether
METHOD CORPORATION Acknowledgment D is within or outside NY.
Marriage Action
GROUND DEFENSE SOL
However, a party who
freely cohabited with other within 6 year(default
Nonage after ha attained age 18 period)
may not claim

within 6 year(default
Mental defect period)

Physical incapacity within 5 year since the

marriage
VOIDABLE
MARRIAGE
voluntary cohabitation
Force/Duress before commencement of No limitation
the action is defense

voluntary cohabitation within 3 years from

Fraud before commencement of discovery
the action is defense

Five year's incurable within 6 year(default

Mental illness period)
willful and voluntary,
without justification,
Abandonment No limitation without intent to
return

Cruel and Inhuman within 5 years from

treatment occurrence of cause

Three year's within 5 years from

SEPARATION imprisonment during occurrence of cause
marriage

condonation(voluntary
Adultery cohabitation), connivance within 5 years from
Only for this, adultery is a discovery
defense

Failure to support within 5 years from

spouse occurrence of cause

willful and voluntary,

Abandonment for at without justification,
least one year No limitation without intent to
return

Cruel and Inhuman within 5 years from

treatment occurrence of cause

Three year's within 5 years from

imprisonment during
marriage occurrence of cause
DIVORCE
condonation(voluntary
cohabitation), connivance within 5 years from
Adultery Only for this, adultery is a discovery
defense

live apart for at least one

CONVERSION year following a separation
DIVORCE decree or separation
agreement
Discharge
(1) death or physical incapacity of a party if the service is personal
Impossibility objective standard (2) subsequent law make the subject matter illegal
(3) subsequent destruction of contract's subject matter

Impracticability subjective When a party encounter extreme and unreasonable difficulty or expense that was
standard not anticipated.

A supervening event that was not reasonably foreseeable at the time of contract
Frustration of Purpose completely destroy the purpose of the contract which was understood by the
parties.

Where a bilateral contract has been partially performed, both parties may rescind
the contract by mutual agreement.
Rescission
Unilateral rescission is possible when one party have adequate legal ground(e.g.
mistake, misrepresentation, or duress)

Novation a duty may be discharged by substituting a new party for one of the parties

The release must be in writing and supported by new consideration or promissory

Release estoppel elements.

Accord and Satisfaction
A party may agree to accept performance different from the originally promised. It
need consideration. Payment of smaller amount can be valid consideration if it is
made in good faith and there is bona fide dispute. (e.g. "payment in full" on the
check)
Satisfaction is the performance of the accord

Lapse When neither party performs her duty, each party's duty is discharged by lapse of
time.
TERMINATION OF OFFER

The offeror's power to revoke is limited

if:
(1) directly communicate the revocation to (1) option contract
Termination by offeror- the offeree (2) firm offer
REVOCATION (2) act inconsistently with willingness to (3) the offeree detrimentally relied and
maintain the offer the offeror could reasonably expect.
(4) in unilateral contract, the offeree
has embarked on performance.

(1) reject (1)expressly or (2) by making a

Termination by offeree- counteroffer. A rejection is effective when
REJECTION or LAPSE OF received.
TIME (2) failure to accept within a specified
time or reasonable period of time.

DEATH OR INSANITY OF EITHER PARTY If the offer is of a kind offeror could not
Death or insanity need not be terminate(e.g. option contract), the
communicated. offer is not terminated.

Termination by operation
of law DESTRUCTION OF SUBJECT MATTER

ILLEGALITY

Assignment of rights
assignee replaces assignor, and the privity of contract b/w
assignor and obligor is extinguished.
assignor assignee
However, obligor can defense against assignee by any defense
available to assignor if he was not informed of the assignment.

obligor obligee
debtor creditor
promisor promisee

For effective assignment, consideration is NOT necessary, so

that the assignee may sue obligor.
However, the gratuitous assignment is revocable by the
assignor.
UNLESS
(1) the obligor already performed,
(2) some indicia of ownership, such as bank book, is delivered,
(3) the assignment is in a writing either signed or sealed, or
(4) the assignee detrimentally relied on the assignment.

Delegation of duties delegator delegate delegator remain personally liable regardless of delegate's
assumption of duty.
obligor obligee
debtor creditor
promisor promisee
THIRD PARTY
BENEFICIARY
INTENDED
INCIDENTAL
CREDITOR DONEE

Intended beneficiary has contractual right Incidental beneficiary has

no contractual right.

The rights of an intended beneficiary vest when she (1)manifests assent

When the third to the promise in a manner invited by the parties, (2) bring suit to enforce
party obtain the promise, or (3) materially change position in justifiable reliance on
the promise.
contractual right?
Prior to vesting, the promisee and promisor are free to modify or
rescind the beneficiay's rights under the contract.

Suit against Third party beneficiary, whether she is creditor or donee, may sue the barbri
promisor on the contract. The promisor may raise against the third party advanced
PROMISOR any defense the promisor would have against the promisee. 54

Only creditor third party beneficiary A donee beneficiary has no right to

Suit against can sue the promisee on the existing sue the promisee unless based on
PROMISEE obligation between them. promissory estoppel.
EXAMPLES OF NON- If only one party is bound to perform, the promise is illusory
ILLUSORY PROMISE and will not be enforced.

Language such as "all the widgets I require,or all that you

Requirement or produce" satisfy the mutuality of consideration. Howevere,
Output contracts the language such as "all the widgets I want, or all you want
to sell me" is illusory.

However, if the condition is entirely within the promisor's

Conditional promise control, the promise is illusory.

Contract where a This contract is valid only if the right to cancel is somewhat
party has the right to
restricted (e.g. a party must give 60 days' notice)
cancel

Voidable promises e.g. one made by an infant

Unilateral and option

contracts

Gratuitous suretyship This is valid only when the suretyship is made before the
promises consideration flows to the principal.
MERCHANT
RULE APPLICATION
apply only between merchant in the
usage of trade
same trade
merchant confirmatory memo rule
governs.
statute of fraud between merchants
Objection must be made within 10
days

apply to sales of goods. Need not to

be merchant.
No Oral Modification Clause is
generally valid, however, between
need no consideration if it is made in
modification good faith merchant, the clause must be signed
separately by the clause by the party to
be bound.
Failed modification operate as an
waiver.

valid without consideration within 90

days
firm offer when offeror is a merchant
but, the offer must be in writing signed
by merchant.

become part of contract, unless

(1) expressly conditioned the
Additional term acceptance on additional terms between merchants
(2) materially alter, or
(3) objection within reasonable time

For return of the goods, the buyer

Buyer's duty in a
must follow reasonable instructions when the buyer is a merchant
sale on approval from the seller

Buyer's duty in After rejection of goods, the buyer

must follow any reasonable when the buyer is a merchant
rejected goods
instructions received from the seller

pass to buyer when tendered for buyer when seller is not a merchant
to take(upon tender of delivery)
risk of loss
(Noncarrier case)
pass to buyer only when the buyer has
when seller is a merchant
taken physical possession

Implied warranty of
when seller is a merchant
merchantability

warranty of title any seller

Implied warranty of
fitness for a any seller
particular purpose

Express warranty any seller

Note that SOF
always apply to
modification
Attorney-Client Privilege Work Product Confidentiality

Communication
communication include spoken or
written, and act intending to convey
a message. But, pre-existing
document do not become
privileged by merely handing over
to attorney.
Document.
The contents is Not necessarily
limited to communication b/w
client and attorney. Conversation
with witness is protected

between attorney and client made by or for party or attorney

For the purpose of seeking or

rendering legal advice In preparation for litigation

Information must be held in

confidence

discoverable upon showing

substantial need and undue
absolutely protected. Except crime hardship. But the mental
or fraud impression or strategy of
litigation of an attorney is
absolutely protected.
The factors to be taken into accout are : (1) the intent of the annexer, (2) the nature
of the chattel, (3) the mode of annexation, (4) the extent of damage the removal
will cause

PERSONAL PROPERTY FIXTURE ACCESSION

chandelier pmbr red189

gas stove pmbr red189

refrigerator pmbr red189

washer/drier(MC57) dish washer pmbr red189

enlarger and projector

glued to the floor.(MC57) grabage disposal pmbr red189

balcony

organ and bench barbri int. 22

concession stand pmbr final 25

 It is to creat interest in land, so distinguished from
CREATION OF convenant on land that is to promise to act or
forbearance as to land. It must be recorded in chain
EASEMENT of title to give constructive notice to successive owner
of land.

must be in writing signed by the holder of

Express grant
servient tenement.

(1) prior to division

Easement implied
(2) there was apparent and continuous use
from Existing Use
(Quasi Easement) (3) reasonably necessary for new holder
(4) the parties intended to use

(1) where lots are sold with reference to

Implication recorded plat or map, buyer has implied
Easement implied easement to use the streets to access their
without Existing lots.
Use (2)the holder of profit a prendre has implied
easement to enter the land to extract the
product.

Easement by strictly necessary

Necessity

(1) Continuous use for the statutory period

(2) Open and notorious use
Prescription
(3) Actual use
(4) Hostile
COVENANT ON promise to do or not to
LAND do something on land

AT LAW [real covenant] IN EQUITY [equitable servitude]

Remedy : Money damage Remedy : Injunction
what is
Intent, Notice, Touch and Concern the land,
necessary for Horizental privity, Vertical privity Intent, Notice, Touch and Concern the land
burden to shift?
what is
necessary for Intent, Touch and Concern the land, Vertical privity Intent, Touch and Concern the land
benefit to shift?
Affirmative Negative Affirmative Negative

writing required writing required, but may be implied provided

writing required (e.g. limit the land use for generally not enforced by that there was a common
scheme of development
single family dwelling) the court
and notice of covenant.

what is covenant to pay rent / to insure the buildings on leased premises / to pay taxes on the leased promise /
covenants option to purchase leased promise / not to sell intoxicating liquor on leased premises / to build a structure
running with the on leased premises / not to assign or sublease premises /to supply water, light, or heat on leased
land? premises

what is
covenants do covenant not to compete in business / to pay promissory note of the covenantee / covenant to pay taxes
not run with the on land other than leased premises / purely personal covenant
land?
 the legislature enacted a statute providing that when a letter is shown to have been
PRESUMPTION properly addressed and mailed, it shall be presumed to have been received by the
addressee.

the judge would instruct jury, "If you find that the plaintiff properly addressed and
permissible mailed the letter, you may, but need not, find that the defendant received it."
inference e.g. res ipsa loquitor

If defendant failed to provied some evidence that he did not receive the mail, the
shifts production judge will conclude as a matter of law for the plaintiff.
but not persuation If defendant come forward to some evidence of non-receipt, the judge will not
burden mention the presumption at all.

shifts both If defendant come forward to some evidence of non-receipt, the judge will instruct
production and the jury, "if you find that the letter was properly addressed and mailed, then you must
persuation find the defendant actually received it unless you find it more probable than not that
burdens the defendant never received the letter.

conclusive The judge will conclude as a matter of law for the plaintiff.
presumption E.g. Negligent per se
ARREST PRIVILEGE POLICE OFFICER
If police officer reasonably believe that
arrest is necessary. Mistake can be a
WHEN USING FORCE excuse about both whether the crimie was
IS PRIVILEGED ?
actually occurred and whether the person
he attemted to arrest committed the crime.
WHEN USING If the felon threatens death or serious
DEADLY FORCE IS bodily harm and deadly force is necessary
ALLOWED ? to prevent her escape.
PRIVATE PERSON
The crime must in fact be committed.
However, mistake as to the criminal can be
a excuse IF he reasonably believe that he is
a criminal.
Only to prevent escape of person who
actually committed FELONY (not
misdemeanor) and
If the felon threatens death or serious
bodily harm and deadly force is necessary
to prevent her escape.
 The burdens are allocated by the
BURDEN OF PROOF jurisdiction's substantive law(a statute or
case law).
BURDEN OF PRODUCTION
(BURDEN OF GOING FORWARD WITH BURDEN OF PERSUASION
THE EVIDENCE)

Who bears in civil On most civil issues, the burden of On most civil issues, the burden of
case? production are on the plaintiff. persuasion are on the plaintiff.

With respect to ELEMENTS of the crime, With respect to ELEMENTS of the crime,
state has the burden of production. state has the burden of persuasion.

Who bears in criminal With respect to AFFIRMATIVE DEFENSES,

case? With respect to AFFIRMATIVE defendant often has the burden of
DEFENSES, defendant always has the persuation.(NY-insanity, duress,
burden of production. entrapment defense by preponderance of
evidence)

A specific presumption shift the burden

of production. :
(1)legitimacy of child, (2)Sanity, (3)Death
from Absence, (4) Ownership of Car, (5)
Chastity, (6)Mail delivery, (7) Bailee's The burden of persuasion remains on the
Burden Shift Negligence. same party throughout a trial.
However, this presumption disappear
when opponent show some evidence of
not existing the fact.(Bursting bubble)

Three standard apply:

(1) a preponderance of the evidence(more
probably true than not) - most civil cases
Standard? (2) clear and convincing evidence(high
probability) - deprivation of parental right.
(3) beyond a reasonable doubt - criminal
cases.
COVENANT FOR completely different from REAL COVENANT(written
TITLE promise to do or not to do something on land)
5 TYPE CONTENT FEATURE

warrant that gantor has title and possession at the

Covenant to Seisin
time of the grant present covent
DO NOT run with the land

Covenant of Right to warrant that grantor has power to make his Buyer can sue seller for
Convey conveyance seller's breach, but buyer
cannot compel seller to
assist him in a subsequent
warrant against the existence of physical(e.g. proceeding to quiet the
general warranty Covenant against signinficant encroachments, easement, profits, title.
deed Encumbrance etc.) or title(e.g. mortgages) encumberance at the
time of grant

Covenant for quiet grantor agree to defend against reasonable lawful future covenant
Enjoyment(or Covenant of claim of title by third party and to commpensate RUN with the land
Warranty) the grantee for any loss sustained by the claim.
Buyer can compel seller to
assist him in a subsequent
Covenant for Further grantor promise to perform reasonably necessary proceeding to quiet the
Assurance to perfect title conveyed title.

By statute, the word "grant" create by implication

statutory special two assurance: (1) the grantor has not conveyed
warranty deed the same interest to another, (2) the estate is free
from encumbrance made by the grantor

quitclaim deed NO covenant of title are included or implied.

WATERCOURS
Riparian Doctrine Prior Appropriation Doctrine
E
Key Distinction Equality of Right First in time, First in right
Reasonable Use

must be an owner of riparian land need not be an owner of riparian land

1. intent to appropriate
2. divert water from supply
3. for beneficial use

Natural use(domestic purpose, drink,

stock watering, irrigating garden) do not concern about natural use or
paramount to the artificial use(irrigation artificial use
for crops, power, manufacture)

Rocky Mountain view

33 states follow this rule. states of west of the Mississippi river

GROUND
WATER
Absolute
The owner of overlying land can take all
owenrship the water she wishes. 12 eastern states follow
doctrine

It is like "absolute ownership doctrine,"

reasonable use except that landowner is liable only if the 25 states follow [majority rule]
doctrine purpose is malicious or the water is
simply wasted or the water is exported.

correlative Each landowner is allowed a reasonable

California
rights doctrine amount for his own use.

appropriate Priority of use (not ownership of some western states follow

right doctrine overlying land) is determinative

HEARSAY
801C
NOT HEARSAY(by definition)
verbal act
e.g. defamatory words
statement offered as circumstantial statement given under oath
evidence of declarant's state of
mind (insanity of knowledge)
statement offered to show the
effect on the hearer or reader
legally operative facts
e.g. word of contract
A statement made out of court by A statement is an oral or writing or
the declarant, and offered to prove nonverbal conduct if it is intended
the asserted matter.
801D
NON HEARSAY(though it is hearsay HEARSAY EXCEPTION1(declarant
by definition) unavailable)
801D1 : Prior statements by
witness,ONLY if the declarant
testify at trial and subject to cross-
exam.
801D1A Prior inconsistent
*Prior inconsistent statement not
made under oath is admissible
ONLY to impeach witness
801D1B Prior consistent
statement offered to rebut lying
801D1C prior Identification of a
person after perceiving her, ONLY if 804B4 Statement of Personal or
the declarant testify at trial and
subject to cross-exam.
801D2 : Admission by party-
opponent
c. statement made by person
authorized by party
d. statement made by agent within
the scope of business and during
the relationship
a. party's own statement
b. statement party adopted
e. statement made by
coconspirator during the course
and in furtherance of the
conspiracy
as an assertion.
804 803
HEARSAY EXCEPTION2(regardless of
declarant's availability)
804B1 Former testimony, as long
as there is sufficient similarity as to
parties and issues so that 803 1
opportunity to develop testimony or Present sense impression
cross examine at the prior hearing
was meaningful.
804B3 Statement against interest
contrary to the declarant's 803 2
pecuniary interest, or subject him Excited Utterances
to civil or criminal liability made by
non-party
804B2 Dying declaration 803 3
homicide or civil action Then existing mental, emotional, or
physical condition
803 4
Statement of purpose of medical
Family History diagnosis or treatment
803 5
804B5 Statement offered against Past recollection recorded
party procuring declarant's (compare with refreshing present
unavailability recollection)
803 6
Record of regularly conducted activity
803 7
Absence of entry in records kept in
accordance with the provisions of
paragraph
803 8
Public records and reports
803 9
Records of vital statistics
803 10
Absence of public record or entry
803 11
Records of religious organizations
803 12
Marriage. Baptismal, and similar
certificates
803 13
Family records
family bible, genealogy, chart,
engraving on ring, inscription on family
portrait, engraving on urn, crypt,
tombstone.
803 14
Records of documents affecting an
interest in property
803 15
Statement in documents affecting an
interest in property
803 16
Statements in ancient documents
803 17
Market reports, commercial
publications
803 21 803 18
Reputation as to character Learned Treaties
803 22 803 19
Judgment of previous conviction Reputation concerning personal or
family history
803 23 803 20
Judgment as to personal, family, or Reputation concerning boundaries or
general history or boundaries. general history
FACT RULE REASONING
평소에 A를 잘 따르던 개가 살인사건 이후 A만 보면 꼬랑지를
감추고 숨는다 NOT HEARSAY 개니까

앵무새가 살인사건 이후 "Tommy don't, Tommy don't" 라고 NOT HEARSAY 앵무새니까

계속 중얼거린다

쇼핑센터에서 미끌어져서 넘어진 A가 negligence 로 소송을

제기하자 쇼핑센터에서 contributory negligence 로 defense
하면서 쇼핑센터 직원이 "look at the banana peel" 이라고 NOT HEARSAY effect on the hearer
외쳤다는 증언을 할려고 한다.

중고차 매매계약을 하면서 buyer가 매매가격 보다 적은 금액을

계약서에 적자고 제안하면서 그 이유는 세금을 절약하기
위해서라고 했다. Seller가 동의 했다. 그 후 buyer가 계약서에 NOT HEARSAY effect on the hearer
적힌 금액만을 주었다. 셀러가 소송을 제기해서 바이어의 말을
증언했다. 바이어의 말은 hearsay인가?

W가 법정에서 "D가 V를 죽이는 것을 봤다고 A가 B에게 말했고 C의 말 - hearsay

B의 말 - hearsay 세말 모두 hearsay exception Test 를
B가 C에게 말했고 C가 나에게 말했다"고 증언했다. A의 말 - hearsay 통과하여야만 증거로 들어온다.

W가 법정에서 "D가 V를 죽이는 것을 내가 봤다고 경찰관에게 W의 말 - hearsay 자신이 직접 보고 한 말도 hearsay다.

말했다"고 증언했다. 법정에서 하지 않았다면.

W가 법정에서 "D가 V를 죽이는 것을 내가 봤다"고 증언했다. NOT HEARSAY 법정에서 한 진술이다.

배의 항해적합성을 점검해달라고 유명한 선장한테 부탁했더니

선장이 가족들을 싣고 주말여행을 다녀왔다. 나중에 배의 ASSERTION 이 아니다. "Intned to say"
안전성이 잇슈가 되었을 때 배선주가 선장의 행동이 배의 NOT HEARSAY
안전성을 입증하는 것이라며 이를 증거로 제출했다

방사능 유출사고 의혹이 제기되자, 원자력관리위원회 소장이

가족들을 데리고 원전공장을 시찰한 뒤 기자들과 인터뷰를
통해 방사능 유출사고는 없었다고 말했다. 그 뒤 사고여부가 HEARSAY ASSERTION 이다
잇슈가 되었을때 원전측이 소장의 행동이 사고없음을 증명하는
것이라며 증거로 제출했다.

병원에서 일상적인 업무절차로서 의사가 기록한 의료카드에

폭행피해자 B가 "허리가 아프다" 고 하고 또 "내가 먼저 HEARSAY 2개
공격했는데 A가 방어하는 바람에 내가 다쳤다"고 진술했다고
적혀 있다. HR?

(1)의 경우 가능하다. Medical diagnosis

exception. 또는 present physical
위의 예어서 "허리가 아프다"는 진술이 증거로 들어올 수 있나. condition exception에 의해서
(2)의 경우에 의료카드가 business record
(1) 의사가 법정에서 증언하는 경우 로서 foundation이 입증된다면 들어올 수
(2)의료카드를 증거로 제출하는 경우
있다. 즉 in the regular course of business
에서 a person who has duty to report 가
말한 것이라면

(1)의 경우 가능하다. Admission by party-

위의 예에서 "내가 어쩌고 " 한 부분이 증거로 들어올 수 있나. opponent 라서 non-hearsay
(1) 의사가 법정에서 증언하는 경우 (2)의 경우 못 들어온다. 이 진술은 for the
(2)의료카드를 증거로 제출하는 경우 purpose of diagnosis or treatment 가
아니라서 의사의 business가 아니다.

"허리가아프다"는 막을 수 있다. 이는
diagnosis or treatment를 위한 말이기
때문에. 하지만 이경우에도 B가 personal
위의 예에서 B가 physician-patient privilege를 주장하여 injury 소송을 제기한 경우라면 자신이
몸상태를 있슈화 했기 때문에 privilege를
의사의 증언 또는 의료카드의 증거제출을 막을 수 있나? 포기한 것으로 보므로 막지 못한다.
"내가 어쩌고 "는 막을 수 없다. 왜냐면
diagnosis or treatment를 위한 말이
아니기 때문에.
CHARACTER

Relevancy means that evidences have

any tendency to make the existence of
any fact that if of consequence to the
401
determination of the action more
probable or less probable than it would
be without the evidence

Only relevant evidence is genrally

402
admissible.

Although relevant, if its probative value

is substantially outweighed by the
danger of prejudice, or misleading the
403
jury, or by undue delay, waste of time,
or needless cumulating evidence, the
evidence may be excluded.

404 A Character
evidence is generally not
admissible.
Pertinent trait of character of the Admissible as exceptotion to 404A
404 A 1 accused by an accused or by the
prosecutor to rebut the same.
Not apply to civil proceeding

Pertinent trait of character of the

404 A 2 alleged victim offered by an accused or Admissible as exceptotion to 404A
by the prosecutor to rebut the same. Not apply to civil proceeding

Rape Shield Law

412(alleged victim's propensity of sex
offense)- evidence to prove the sexual
behavior of sexual disposition is
generally inadmissible.
413(sex offender's propensity)-
admissible in civil or criminal case
414(child molester's propensity)-
admissible in civil or criminal case
But, in 412, specific instance of sexual
behavior is admissible by defendant to
prove consent (doggy fashion) in
criminal, and more likely in civil if the
provative value outweigh the prejudice.

404 A 3 Character of a Witness

607 A
party may attack the credibility of his
own witness
The credibility of a witness may be
608 A attacked
or supported by the evidence
in form of opinion or reputation, but
ONLY if it refer to TRUTHFULNESS.

Specific instance of the conduct of

witness may be inquired on cross-
608 B examination
to impeach the credibility
of witness ONLY if it refer to
TRUTHFULNESS, but never can the
extrinsic evidence be admitted.
 conviction may be admissible to
impeach the witness.
609A1: Felony not involving
DISHONESTY
609A2: Any crime involving
609 DISHONESTY
609B : If more than 10year lapse, not
admissible
609C : if pardon, annulment,
rehabilitation, not admissible
609D : Juvenile adjudication is not
admissible

Prior bad acts is admissible to prove

motive, opportunity, intent, preparation,
404 B
plan, knowledge, identity, absence of
mistake or accident.

Admissible character evidence must be

405 A proved only by testimony as to <PLUS> Specific instance of conduct
reputation or in the form of an opinion may be inquired on Cross-examination

When Character itself is an essential

405 B element of a charge or claim, Specific
instance of conduct may be admissible
by Extrinsic evidence.

406 Habit evidence is admissible

Subsequent remedial measure is not

admissible to prove negligence, but
407 admissible to prove ownership, control,
or feasibility of precautionary measure,
or to impeach.

Evidence of conduct or statements

408 made in compromise negotiations is
not admissible.

409 Evidence
of offering medical expenses
is not admissible to prove liability
guilty plea which was later withdrawn, a
plea of nolo contendere, any discussion
410 in the course of plea with prosecution is
not admissible

Evidence of buying liability insurance is

411 not admissible to prove negligence.
Casual insurance is admissible.
Impeachment mothods
Common law principle Federal modification

Two important requirements Federal Rule liberalized by allowing

1. Foundation must be laid. The witness must be given a Foundation to be made before or after
613B
Statement inconsistent chance to deny or explain the inconsistency and the opposite the impeachment.
with his present party must have opportunity to interrogate witness. Thus, one party may wait until witness Declarant
testimony 2. No extrinsic evidence on Collateral Matter. If the prior leave the stand, and then may provide is present
in court
statement involves only a "collateral matter," the statement extrinsic evidence of witness's prior
may not be proven by extrinsic evidence. inconsistent statement.

bias of the witness Bias or Interest can be introduced by extrinsic evidence

testimony of other by putting other witness on the stand who contradict the
witness witness's testimony

reputation or opinion 608A

specific instance of misconduct may be inquired as long as it

charater of the witness refer to truthfulness. NOT extrinsic evidence 608B

conviction of crime(felony or any crime involving dishonesty)

by eliciting from the witness or by public record during 609
examination

defect of capacity of the e.g. Do you, witness, know that the defendant committed a
witness perjury?

When a hearsay exception statement or party-opponent's

proof of other statement vicarious admission has been admitted in evidence, the 806
or conduct of the witness credibility of the declarant may be attacked or supported by Declarant
that is different from any evidence that would be admissible if declarant had is NOT
admitted statement of testified as a witness. Thus, any statement or conduct by present in
the witness the declarant, though it is a hearsay, is admissible without court
giving opportunity to deny or explain the statement.
pmbr final
112, red
155

pmbr red
182

pmbr red
182
PRIVILEGE
CONTENTS COMMON LAW FEDERAL STATE
the same
* In civil "diversity case," state law of privilege apply rule apply
FRE 501 * In criminal case and civil "federal question" case, federal common to
law apply presumptio
n.

Attorney include "a person who reasonably believed by the client to

be a lawyer."(FRE503)
A communication is confidential if not intended to be disclosed to
third persons.
Attorney-Client privilege The privilege may be claimed by client, but lawyer also can claim on
behalf of client, where the authority is presumed. This survive the
death of client, so passed on to the representative.
EXCEPTION
1. crime or fraud, 2. joint client, 3.breach of duty by lawyer or client.

* confidential communication
communication extends to any information In NY, the communication
secured by one spouse through observation must be made in reliance
Marital during the marriage as to the health, upon intimacy of marital
communica intoxication,
(pmbr red119)
habitual or a particular time. relationship. Note: Even
before final decree of
tion * In any civil or criminal case divorce, if they live separately
Husband- *divorce does not terminate the privilege for long time, this privilege do
Wife privilege *both spouse has the privilege not arise.

* not limited to communication Only party spouse has this

Spousal privilege
Immunity * In only criminal case Only witness-spouse has this privilege NY does not recognize this
* divorce terminate the privilege
privilege

Therefore, Federal court also do not recognize this privilege

Physician-Patient privilege Common do not recognize this privilege
Requirement : (1) patient must be seeking treatment, (2) the
communication must be confidential information, non-medical
information is not privileged. Yes
However, in a personal injury suit the plaintiff put his physical
condition in issue, so his privilege is waived.

Psychotherapist-Patient
privilege Common do not recognize this privilege Therefore, Federal court also do not recognize this privilege Yes

A clergyman is a minister, priest, rabbi, or individual reasonably

Clergyman-Penitent believed.
privileged This is claimed by a declarant, and the clergyman may claim on
behalf of the person, where authority is presumed.
WARRANTIES

TYPE HOW TO ARISE DISCLAIMER general disclaimer Magnuson-Moss DEFENSE DAMAGES

Express By affirmation of fact,

promise, description, Extremely difficult to disclaim
Warranty model, or sample

Title is good, 1. buyer must notify

By specific language or If consumer the seller the breach
Warranty of transfer By sale of goods circumstances showing seller
Title rightful,no lien or product of warranty within a Consequential
encumbrance does not claim title manufacturer or reasonable time
after he discover or damages may
marketer issues a be limited
FULL written should have where the loss
warranty, implied discovered is commercial,
By disclaimer mentioning warranties cannot 2. seller's warranty
Warranty of fit for ordinary By sale of goods of the "merchantability"(if written but personal
kind regularly sold by be disclaimed. extends to any injury is always
Implied Merchantability purpose disclaimer, it must be By language such If the written natural person who
Warranty the merchant conspicuous) compensatable
as "as is", by warranty is is in the family or .
inspection(or described as a household of the
refusal to inspect), LIMITED warranty, buyer or who is a
By sale of goods where or by course of implied warranties guest in her home
Warranty of fit for buyer's seller has reason to dealing, course of may be limited to
Fitness for know of particular By conspicuous written performance, or the duration of the
Particular particular purpose and of buyer's disclaimer
purpose usage of trade written warranty.
purpose reliance on seller to
choose suitable goods
Condition and Promise RULE
Only strict compliance with the
Condition
condition may arise other
(Express or Implied) party's duty to perform
Normal bilateral contract fall in
this category.
Dependent Each party's duty of
Promise performance is constructively
conditional upon the other
party's substantial performance. 2. Where each installment represent
Promise
Each party has a duty to
Independent perform independently even
Promise though other party failed to
substantially perform.
TYPE OF CONTRACT
In doubtful
1. If a contract is found to be divisible, it
will for purpose of constructive condition situation,
be treated as a series of separate courts will
more likely
contacts. (Service contract is usually
divisible, however, construction contract hold that the
provision is a
with progress payment is not normally promise
divisible).
rather than a
condition
payment for work previously done, each because this
party's duty to perform is constructively
support
conditioned on the other's prior duty. contract.
1. non payment of the premium by the
policy holder does not relieve the insurance
company of the duty to pay
2. If landlord does not repair, the tenant
cannot refuse to pay the rent.
REMEDIES IN SALES
SELLER remedy formula BUYER remdey formula
Difference
when buyer accepts
between value of
goods or K
Action for the price goods are destroyed Action on warranty when buyer accept conforming goods
goods. and value of
without fault after risk K= Contract Price nonconforming
pass to buyer.
goods.

K-RS+ID-ES when buyer

CC-K+ID+CD-ES
when seller commercially
commercially RS=resale price reasonably
Contract-Resale reasonably resell with ID=incidental Cover damages cover(replace with CC=cover price
notice to buyer damage other goods) without CD=consequential
damages
ES=expense saved unreasonable delay

when buyer did not

when the seller accept goods, buyer
doesn't go to resell, K-M+ID-ES did not cover, or
Contract-Market or failed to resell Market-Contract buyer unreasonably M-K+ID+CD-ES
reasonably or failed M=market price cover.
to give notice This is DEFAULT
REMEDY.
K-DC
when the seller is a
volume seller; Infinite when buyer intended
Lost profit supply, limited DC=direct cost(do Lost profit to resell goods Anticipated profit
demand not include fixed
cost)

K-ADC+CI-RS
when volatility of the
when the seller ADC=anticipated market will benefit
Identification and direct cost someone. It is better CC-K or M-K
reasonably halt Tex-Par
Completion CI=cost incurred for non-breaching
manufacture RS=representing party to get the
proceeds of scrap benefit.
sale

K-DC-MCC
when seller the damage is
unreasonably MCC=wasted money Allied However, when Tex- limited to
complete the Par results in injustice consequential
spent completing
manufacture damages.
MCC=ADC-CI
when seller
unreasonably failed to the same as
complete the Contract-Market
manufacture
1998.2.22
Formed on or before February 22, 1998 Formed after February 22, 1998
When the certificate is silent, do YES, for all shares with voting rights or NO
preemptive right exist? unlimited dividend rights.

What is necessary to Majority vote of outstanding shares

increase/decrease the number of absent a provision to the contrary in
directors? the certificate.

Such loans must be approved by

What is necessary for a majority of shareholder entitled to vote Board can approve the loan if it find
corporation to lend corporate
fund to director? unless certificate allows board to decide the loan is the corporation's interest.
the loan.

FUNDAMENTAL CHANGE such

as
(1) amendment of certificate in
order to strike supermajority
quorum or voting requirement for Must get board approval and Must get board approval and entitled to
board action, or strike restriction shareholder approval by 2/3 of the shareholder approval by majority of the vote =
of board authority shares entitled to vote(not "actually shares entitled to vote(not "actually outstandin
(2)mergers and consolidations voting"). voting"). g share
(3)transfer(not just mortgage) of
all or substantially all of the
assets
(4)dissolution
APPLICATION OF
CONSTITUTION
CLAUSE
FEDERAL GOVERNMENT STATE GOVERNMENT PRIVATE PERSON

apply through 14th DP clause

However, 5th grand jury
Bill of Rights (1st - OK indictment, 7th right to jury trial
10th) in civil case, 8th right against
excessive bail are not
applicable to state.

Commerce Clause OK OK OK

13th OK OK OK

barbri
14th NEVER APPLY OK NEVER APPLY
released 22

15th OK OK NEVER APPLY

Clause5 of 14th Regulate state despite 11th

Due Process 5th Included in14th

Equal Protection apply through 5th DP clause Included in14th

QUORUM AND
REQUIRED VOTE
BOARD ACTION SHAREHOLDERS' ACTION
QUORUM VOTE QUORUM VOTE
majority of
"outstanding
majority of "entire majority vote of majority of shares
DEFAULT RULE shares"(not the
board" "present directors" "actually voting"
numbers of
shareholders)
may the quorum be YES, only by certificate YES, only by certificate
decreased? or bylaw, but never to or bylaw, but never to
fewer than one-third. fewer than one-third.

may the voting

requirement be NO NO
decreased?

may the quorum be ONLY certificate(not ONLY certificate(not

bylaw) can increase to bylaw) can increase to
increased?
supermajority. supermajority.

may the voting ONLY certificate(not ONLY certificate(not

requirement be bylaw) can increase to bylaw) can increase to
increased? supermajority. supermajority.
PARTENRSHIP AND
CORPORATION
PARTNERSHIP CORPORATION

Eastablishment need not filing Certificate of incorporation should be filed

at the department of state

dissolved when any partner dies, withdraws, coporate existence does not depend on the
Dissolution
or file for bankruptcy. continuity of its shareholder

a partnership interest is only transferable

with the remaining partner's approval
share of corporation is freely transferable
Transferability However, the economic interest(right to unless it is subject to a written restriction on
share profit, distrubuted surplus, proceeds
of dissolution) is transferable without other transfer.
partner's consent.

Liability partners are jointly and separately liable for shareholders are liable for corporate debt
the partnership's debt only to the extent of their investment.
REQUIREMENT/ CONCEPT CONSIDERATION OF PARTIES
OUTPUT

Buyer must operate his business 생산자가 안정적인 수요처를 barbri

in good faith.
확보하고자 할 때(생산량이 practice
Buyer must buy only from the 많을때) 40
A promise by the buyer to buy seller.
REQUIREMENT all of his requirements from
CONTRACT the seller, who promises to sell
that amount to the buyer
Seller must sell whatever the 생산량이 부족하면 딴 데서 사서
buyer requires. 상인한테 제공해줘야 한다.

Seller must operate his business 상인이 생산물을 독점판매하고

in good faith.
Seller must sell only to the buyer 싶을 때(생산량이 적을 때)
A promise by the seller to sell
OUTPUT all of his output to the buyer,
CONTRACT who agree to buy that amount
from the seller.
Buyer must buy whatever the 상인은 생산자 물건을 다 사주고
seller produces. 모자라면 딴 데서 사도 된다.
Procedual Due
Process
Welfare benefit Disability benefit Disciplinary Suspension

disable person is not

grievous loss necessarily poor he is a bad guy

the beneficiary could not There is a reliable source to

THREE PART TEST properly response because determine disability such as
of their poverty or illiteracy. the record of physician.

government has interest to

government interest government interest seclude the wrongdoer from
good guys earlier.

Prior notice and opportunity

HOW MUCH IS Prior Evidentiary hearing Subsequent Evidentiary to respond is enough.
GIVEN? hearing is enough Evidentiary hearing is NOT
necessary.

It includes (1) to secure It is also called as "trial-

What is Evidentiary counsel, (2) to confront and Evidence rule is not applied, type hearing," or "adverse
Hearing? cross-exam witness, (3) to by which it is distinguished
from Judicial Review. hearing." It is opposed to
call his own witness. "argument-type hearing."
Risk of Loss

(1) AGREEMENT - If there is agreement, it governs

(2) BREACH - Breaching party is liable for loss
RULE HIERARCHY
(3) DELIVERY BY A CARRIER - depends on shipment or destination
(4) NO (1), (2), (3) - depends on merchant or non-merchant

If seller is merchant, risk of loss shift to buyer when buyer takes possession
Noncarrier contract
If seller is not a merchant, risk of loss shift to buyer when the seller tenders
delivery

If shipment contract, risk of loss shift to buyer when goods are delivered to
the shipper. FOB seller's residence
Carrier contract
If destination contract, risk of loss shift to buyer when seller tenders delivery
of goods at the destination. FOB buyer's residence

Rule for ordinary sale apply, and if goods are returned to seller, risk still
Sale or return
remains on buyer while goods are in transit.

Sale on Approval Risk does not pass until buyer accepts goods. If buyer decides to return the
goods, return is at seller's risk.

The risk of loss does not pass to the buyer until the defects are cured or the
buyer accepts the goods.
Defective goods If the buyer revokes acceptance, the risk of loss is treated as having rested on
the seller from the beginning for any loss not covered by the buyer's
insurance.

Any loss occurring within reasonable time after the seller has identified
Breach by buyer conforming goods and learned of buyer's repudiation falls on the buyer to the
extent of any deficiency in the seller's insurance coverage.