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MBE In Brief
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The MBE REFERENCE Volumes consist of: Introductory Volume: Introduction — The MicroMash Way to the MBE Reference Volume I: Constitutional Law Criminal Law & Procedure Evidence Reference Volume II: Contracts Real Property Torts MBE In Brief: Condensed Outlines Bar Exam Alerts At-A-Glance

Acknowledgements: The contents of the MicroMash MBE Review were initially developed and written by SMH. Walter McLaughlin, Jr. and his partners, Frederick M. Hart and James W. Smith, founded the SMH Bar Review in Massachusetts in 1964. The SMH Bar Review expanded to 22 additional states and the District of Columbia. In 1996, MicroMash purchased the SMH Bar Review and converted its MBE product into the current computer-based Review. Walter McLaughlin continues as the primary contributing author of the MicroMash MBE Review. We recognize the accomplishments and dedication of our team of employees whose visions have made such an outstanding product. They contributed countless hours to deliver this package and are each fully dedicated to helping candidates pass the Bar Exam. We particularly thank the following members of the MicroMash MBE Review team: Software designers, developers, and testers: H. Bart Rogers, Ph.D. Jeff Owen James Otis Olga Zaturenskaya Nelson Adams Susan Wines Kirk Langman Carlos Seegmiller Legal Editorial Department: Amy 0. Poggioli, Esq. Lesley A. Yosses, Esq. Sheryl Botnick, Esq. Brian Page, J.D.

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This book, the accompanying software, and printed supplements contain questions and answers from the Multistate Bar Examination copyrighted ©1992, Sample MBE copyrighted ©1995, Sample MBE II copyrighted ©1997, and Sample MBE III copyrighted ©2002 by the National Conference of Bar Examiners ("NCBE"), all rights reserved, and are reprinted with permission. MBE Subject Matter Outlines are copyrighted ©1997 by the NCBE and are reprinted with permission. "MBE" and "Multistate Bar Exam" are trademarks of the NCBE. Certain publicly disclosed questions and answers from past MBEs have been included herein with the permission of NCBE, the copyright owner. These questions and answers are the only actual MBE questions and answers included in MicroMash's materials. Permission to use the NCBE's questions does not constitute an endorsement by NCBE or otherwise signify that NCBE has reviewed or approved any aspect of these materials or the company or individuals who distribute these materials. All other trademarks are the property of their respective companies. This book is written to provide accurate and authoritative information concerning the covered topics. It is not meant to take the place of professional advice. Software copyright CD1984-2003 by M-Mash, Inc. Copyright ©2003 by M-Mash, Inc. All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage or retrieval system, except as may be expressly permitted by the 1976 Copyright Act or in writing by the Publisher. Requests for permission should be addressed in writing to: Legal Editorial Department, MicroMash, 6402 South Troy Circle, Englewood, Colorado 80111-6424.

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MicroMash MBE In Brief: Condensed Outlines Bar Exam Alerts At-A-Glance

MicroMash®
MBE IN BRIEF CONSTITUTIONAL LAW

MicroMash ® BAR REVIEW
MBE IN BRIEF CONSTITUTIONAL LAW
Table of Contents
I. THE NATURE OF JUDICIAL REVIEW 1

A. ORGANIZATION AND RELATIONSHIP OF STATE AND 1 FEDERAL COURTS IN THE FEDERAL SYSTEM
1. 2. Federal Court Jurisdiction State Court Jurisdiction Original Jurisdiction Appellate Jurisdiction To Review Federal Court Decisions 1 2 2 2

B.

CONSTITUTIONAL BASIS OF SUPREME COURT JURISDICTION2
1. 2.

C.

CONGRESSIONAL POWER TO DEFINE AND LIMIT FEDERAL 2 COURT JURISDICTION
1. 2. 3. The Supreme Court Lower Federal Courts Legislative (Article I) Courts General Principles Of Constitutional Adjudication The Case-or-Controversy Requirement Standing Timing Of Litigation Justiciability — Political Questions Appellate Jurisdiction To Review State Court Decisions Burden Of Proof In Constitutional Litigation 2 2 3

D.

JUDICIAL REVIEW IN OPERATION
1. 2. 3. 4. 5. 6. 7.

3
3 3 3 4 4 4 5

II.

THE SEPARATION OF POWERS
A. THE POWERS OF CONGRESS
1. 2. Enumerated And Implied Powers The Federal Commerce Power

5 5
5 5

AUTHORITY RESERVED TO THE STATES 11 11 12 13 C. And Fifteenth Amendments 6 The Investigatory Power 7 B. THE RELATION OF THE NATION AND THE STATES IN THE FEDERAL SYSTEM 11 A. 6. 2.3. FEDERAL INTER BRANCH RELATIONSHIPS 1. 9. 4. 7. 4. 3. 5. 2. Immunity Of The Federal Government Immunity Of State Government Negative Implications Of The Commerce Power Limitations On State Power In Taxation Specific Constitutional Limitations On State Power Direct Conflict State Act Enhances Federal Policy State Act Contravenes Federal Policy Preemption 11 11 11 B. 1. 2. 3. 3. INTERGOVERNMENTAL IMMUNITY 1. 8. As Chief Executive The Powers Of The President As Commander-In-Chief Powers Of The President Over International Affairs The Appointment And Removal Powers - 7 7 8 8 8 C. Fourteenth. And Judicial Immunities 10 III. Congressional Limits Upon The Executive 8 8 The Presentment Requirement And The President's Power To Veto Or To Withhold Action 9 Delegation Doctrine 9 Executive. 2. 4. 5. POWERS OF THE PRESIDENT 1. The Taxing Power The Spending Power 6 6 Power Over Territories 6 The Federal Property Power 6 War And Defense Powers 6 Congressional Power To Enforce The Thirteenth. 3. 2. 1. NATIONAL POWER TO OVERRIDE STATE AUTHORITY 13 13 13 13 14 Congressional Authorization For Otherwise Impermissible State Activity14 ii . 4. Legislative.

§2 — The Comity Clause 15 15 15 15 15 B. RELATIONS AMONG STATES I. BILLS OF ATTAINDER. 1. 4. 1. 2. PRIVILEGES AND IMMUNITIES CLAUSES 22 22 22 E. STATE ACTION AND THE ROLE OF THE COURTS 1. 2. 2. THE OBLIGATION OF CONTRACTS.D. 3. 2. 3. 2. Interstate Compacts Full Faith And Credit 14 14 14 IV. 3. FIRST AMENDMENT FREEDOMS 23 23 24 . 2. 22 AND EX POST FACTO LAWS 1. State Agency Public Function State Involvement Substantive Due Process Takings Procedural Due Process What Process Conforms To The Requirement? Fundamental Interests Nonfundamental Interests Suspect Classifications Nonsuspect Categories Under The Fourteenth Amendment Under Article IV. EQUAL PROTECTION OF THE LAWS 19 19 20 20 21 D. DUE PROCESS 16 16 17 18 18 C. 1. Obligation Of Contracts Bills Of Attainder Ex Post Facto Laws Freedom Of Religion And Separation Of Church And State Freedom Of Expression And Association 22 22 22 F. 3. 2. 1. 4. INDIVIDUAL RIGHTS A.

iv .

THE NATURE OF JUDICIAL REVIEW A. The federal court retains jurisdiction over the case. appeal to the Supreme . A state may expressly waive its Eleventh Amendment protection. as a matter of discretion. laws of the United States. Exceptions to the application of the Eleventh Amendment Under the ex parte Young exception. Their jurisdiction is constitutionally limited to cases or controversies arising under the Constitution. and treaties of the United States. cases affecting ambassadors. cases in which the United States is a party. a state official can be sued in federal court to prevent his enforcement of an unconstitutional statute. Pursuant to the Fourteenth Amendment. b. but damages as to past violations may not be assessed against the state. Abstention There are two types of abstention: 1) Discretionary abstention A federal court can. ministers and consuls. c. and cases based upon diversity of citizenship. and admiralty and maritime jurisdiction. ORGANIZATION AND RELATIONSHIP OF STATE AND FEDERAL COURTS IN THE FEDERAL SYSTEM 1. 2) Abstention in cases to involving state criminal statutes There is also abstention based upon considerations of federalism. and completes adjudication if necessary after the state court opinion is rendered.CONSTITUTIONAL LAW I. a. Federal Court Jurisdiction The federal court system consists of a constitutionally created Supreme Court and inferior courts created by Congress. Congress can authorize a suit against a state to enforce rights created by that amendment. An injunction may require an official to make prospective disbursements of state funds. Personal damage suits against state officers are not prohibited by the Eleventh Amendment. refuse to adjudicate an issue involving an unresolved point of state law until the state court has ruled on the matter. The claim may not be based on state law. which prevents the federal district court from enjoining enforcement of a state statute or declaring it unconstitutional if there is a pending criminal prosecution under that statute. Federal review of such a statute is limited to certiorari. Limitation of the Eleventh Amendment The Eleventh Amendment prohibits a citizen from suing a state in the federal court.

B. Appellate Jurisdiction To Review Federal Court Decisions The United States Supreme Court can review lower federal court decisions by appeal when there is an appeal from a three-judge district court convened because the relief sought is a restraining order against enforcement of a state statute. The Supreme Court Congress can neither add to nor subtract from the constitutional grant of original jurisdiction to the Supreme Court. Congress cannot interfere with the inherent judicial functions of courts it has created. except where Congress or the Constitution vests exclusive jurisdiction in the federal courts. nondiscriminatory excuses.2 MicroMash MBE In Brief: Constitutional Law Court. it cannot limit the judges' terms or reduce their compensation. . so long as the regulation of appellate jurisdiction does not destroy the role of the Court in the constitutional scheme. 2. 2. CONSTITUTIONAL BASIS OF SUPREME COURT JURISDICTION 1. CONGRESSIONAL POWER TO DEFINE AND LIMIT FEDERAL COURT JURISDICTION 1. under the parens patriae doctrine. but can vest concurrent jurisdiction in other courts. a state must either place in issue its own rights. C. 2. Congress can control the appellate jurisdiction of the Supreme Court. All other cases in the federal courts of appeal. Lower Federal Courts Congress has the power to create and abolish lower federal courts and. unless the states have valid. Original Jurisdiction The Supreme Court has original and exclusive jurisdiction in all cases between two or more states. Once it has created those courts and authorized the judgeships. can be reviewed by certiorari. State Court Jurisdiction State courts have concurrent jurisdiction over matters within the jurisdiction of the federal courts. or habeas corpus in the district court. including an appeal when the court of appeals holds a state statute invalid or when the federal court has held an act of Congress unconstitutional. To sue in the Supreme Court. within the grant of the judicial power. and suits to which ambassadors or other public ministers of foreign states are parties. the rights of a large class of its citizens. State courts are required to adjudicate federal claims. suits by a state against the citizens of another state or against aliens. or. The federal district court can hear a declaratory judgment action challenging the constitutionality of a state statute when brought by a proper plaintiff if there is no pending state court prosecution. It has original and concurrent jurisdiction in suits between a state and the United States. to determine their jurisdiction.

This is a constitutional limitation. Legislative (Article I) Courts As an incident to its Article I powers. Specialized problems in standing 1) Taxpayer standing A federal taxpayer does not have standing to challenge federal expenditures unless there is a logical nexus between the status asserted and the claim sought to be . if she has been injured in fact and is within the zone to be protected by the statute in question. D. the Court is likely to deny standing if the plaintiff is not harmed in a manner different from the public at large. a direct and substantial interest in the outcome. but the injury need not be different from the injury suffered by the public at large. Standing The standing requirement focuses on the relationship of the plaintiff to the claim he is making. General Principles Of Constitutional Adjudication The Court will not adjudicate a suit unless the parties are genuine adversaries. It will not anticipate a constitutional issue in advance of the need to decide it. The Court will not reach a constitutional issue if it is possible by construction to decide the case on nonconstitutional grounds. 3. Congress can create courts with nonjudicial functions. b. The courts may not adjudicate abstract questions or render advisory opinions. JUDICIAL REVIEW IN OPERATION 1. or if Congress or the Constitution did not intend to confer standing. Before a court will decide a case.MicroMash MBE In Brief: Constitutional Law 3 3. There are two levels of standing: the constitutional requirement derived from the case-or-controversy requirement. Self-imposed requirements Even though the constitutional standard is met. such as rendering advisory opinions. even if a harm to a legally protected interest has not occurred. The Case-or-Controversy Requirement The judicial power of the United States extends only to cases or controversies — that is. Plaintiff must also show that the relief she is requesting will redress the harm that is alleged. to actual disputes between adversaries over concrete facts. and the self-imposed prudential rules. it must be satisfied that the parties have standing — that is. c. nor formulate a rule of constitutional law broader than that required by the facts to which it is applied. if he is asserting rights of third parties. 2. a. Damage to environmental interests will give standing so long as there is an allegation of personal injury. A person has standing to challenge an administrative decision. the plaintiff must show that she has been injured by the action she is complaining about. The constitutional standard To satisfy the constitutional standard.

Timing Of Litigation a. The mootness doctrine will not apply: (1) when a party has a continuing. 3) Standing to raise rights of third parties A party ordinarily may raise only constitutional deprivations that affect him personally. he may raise the constitutional rights of third parties if there is a special relationship with that third party. Mootness When the passage of time resolves the issues between the parties so that the plaintiff no longer has a stake in the outcome. 6. and if that party would not otherwise have his rights adjudicated. However. i. Justiciability — Political Questions The Supreme Court will decline to review a case if the final determination of the issue has been committed by the Constitution to another branch of the government. Appellate Jurisdiction To Review State Court Decisions The United States Supreme Court has the right to review decisions of the highest state court by certiorari (a discretionary form of review available when four justices of the Supreme Court agree to hear the case) when the validity of a federal statute is upheld. (3) when the case is a class action and other members of the class have a continuing interest in the outcome. or when the Court is inherently incapable of managing the controversy. Ripeness can also bar adjudication when the defendant's alleged actions affect the plaintiff in an imprecise manner. 5. yet evades review because the passage of time makes each such case moot before it can be litigated. or decides against the validity of a . or the United States Constitution. and must allege a positive limitation on the spending power. 2) Standing as a citizen It is unlikely that a plaintiff can use her status as a citizen to obtain standing. The claim must seek to enjoin a spending (not a regulatory) statute. b. a treaty.e. the case will be dismissed as moot. The only such limitation that has been recognized is the First Amendment Establishment Clause. residuary interest in the outcome. or when the state court upholds the validity of a state statute. when the validity of a state statute is successfully challenged on the ground that it is repugnant to federal law. the plaintiff has not yet violated the statute..e. i.4 MicroMash MBE In Brief: Constitutional Law adjudicated. Ripeness A suit will be dismissed because it is not ripe when the action that is the subject of the claim is indefinite. (2) when the injury is capable of repetition.. it is not clear that the defendant would enforce the statute against the plaintiff. and (4) when an adjudication is necessary to prevent recalcitrant officials from returning to their old practices once a case has been dismissed for mootness. 4.

the Court will review it as decided on federal law. or is infringing upon the free exercise of religion or upon speech fully protected by the First Amendment. Review by appeal (a nondiscretionary form of review) has been all but eliminated.MicroMash MBE In Brief: Constitutional Law 5 federal statute. b. 2. when Congress is regulating intrastate activities because of their relation or effect on interstate commerce. The Federal Commerce Power Where Congress is regulating either the instrumentalities of interstate commerce or the channels of interstate commerce. The ordinary standard in a due process or equal protection case is whether the statute serves a rational purpose. If the basis of decision is ambiguous. limited only by positive limitations in the Constitution such as the Establishment Clause. all state court appeals must be exhausted and the judgment must be final. THE SEPARATION OF POWERS A. §8. While there is no general delegation of legislative power to Congress. unless the state court has made a "plain statement" in the decision that federal cases are being used only for guidance. Enumerated And Implied Powers The Constitution vests specific legislative powers in Congress. 7. However. State procedural grounds are adequate if the procedure is uniformly applied and furthers a legitimate state interest. THE POWERS OF CONGRESS 1. The exceptional standard The exceptional standard applied when the state is classifying by means of a suspect classification or affecting a fundamental interest. Incidental to the power to pass legislation is the power to conduct investigations and hearings. Before a case is ripe for Supreme Court review. is that the state has the burden of justifying the statute by showing that it is necessary to serve a compelling state need. The usual standard The usual rule is that the plaintiff has the burden of showing that a challenged statute is unconstitutional. the Necessary and Proper Clause gives Congress the implied power to pass legislation appropriate and reasonably related to the specific delegation of legislative powers under Article I. Supreme Court review is not available even if federal issues are involved if the state court decision is based upon an adequate and independent state ground. Burden Of Proof In Constitutional Litigation a. State decisions on matters of substantive state law are adequate except when state law purports to incorporate a federal standard under a statute creating a federal cause of action. its power pursuant to the Commerce Clause is plenary. Appeals on interlocutory matters are not permitted unless the injury would be irreparable and the issue is separable. II. the court must find a substantial effect on interstate .

it will still be valid if the regulation imposed by the statute would be valid under the commerce power. provide and maintain a navy. Congress has the power that is normally possessed by a state legislature.6 MicroMash MBE In Brief: Constitutional Law commerce for the act to be constitutional. Congress can control the economy during wartime and for a reasonable period thereafter. 8. Congress can accomplish ends through conditions attached to the expenditure of funds that it could not accomplish by direct regulation. Fourteenth. a power not subject to judicial review unless the money is spent for a purpose that is specifically prohibited by the Constitution. it does have the right to spend money for the general welfare. 6. the Court has in recent years construed legislation passed under the Fourteenth Amendment to . The legislation can make findings concerning the perceived effect which is likely to aid the court in finding the act constitutional. It may set up military courts to try military personnel for crimes committed on military posts or in service connected activities. 3. A tax statute. The Spending Power Although Congress does not have the right to legislate for the general welfare. authorize the destruction of private property. And Fifteenth Amendments While early cases construed the Civil War Amendments in a restrictive manner. The Federal Property Power Article IV. including military dependents. unless such regulations violate basic individual constitutional guarantees such as the right not to incriminate oneself. 4. Congressional Power To Enforce The Thirteenth. 5. 7. even though it regulates the subjects it taxes. War And Defense Powers Pursuant to its power to declare war. operate the draft. If legislation cannot be sustained under the taxing power. Congress may also protect property owned by the federal government. raise and support armies. even though the amount raised is minimal. and to make rules for the government of armed forces. that a direct tax (head taxes or ad valorem taxes on real property) be apportioned among the states. Congress may enact administrative provisions that have a substantial regulatory effect. and accomplish other acts incidental to its delegated powers. will be sustained under the taxing power if one of its purposes is to raise revenue. The Taxing Power The taxing power of Congress is limited by the requirements that it be exercised in a uniform manner throughout the United States. and to enter into competition with private businesses. military courts may not try civilians. Incidental to the taxing power. and that no tax be levied on exports. Except for military spies or enemy combatants. §3 of the Constitution gives Congress the right to dispose of federal property. Power Over Territories In the District of Columbia and other federal enclaves.

The president's veto can be overridden by a two-thirds vote of each house of Congress. Morgan implied. Under the Thirteenth Amendment. City of New York. that Congress has the power to define the content of the equal protection and due process guarantees of the Fourteenth Amendment. a defendant may raise as a defense that the investigation is beyond the scope of the legislative power. POWERS OF THE PRESIDENT 1. but the Court has never held. Dicta indicate that Congress has the power to legislate directly against individual conduct that restricts Fourteenth Amendment freedoms. or that her First Amendment rights were infringed. that she properly raised her right against self-incrimination. except when Congress adjourns within 10 days of the time a bill is delivered to the president. In that case. Congress not only can legislate against slavery and involuntary servitude. The veto power empowers the president to veto a bill in its entirety.MicroMash MBE In Brief: Constitutional Law 7 reach not only state action. B. Congress may penalize a reluctant witness by trying her for contempt of Congress and imprisoning her for the remainder of the congressional term. The Court held the line item veto unconstitutional in Clinton v. but also actions of officers acting under color of state law. the president has an undefined quantum of inherent authority to act unless Congress has specifically forbidden the proposed action. that she was not given a fair opportunity to determine if she was within her rights in refusing to answer. The Court has upheld the power of Congress to regulate local elections under the Fifteenth Amendment. . which is not limited by the state action concept. In such a judicial proceeding. 9. or by trying her in a judicial proceeding. As Chief Executive a. Power and obligation to execute the laws As chief executive. c. However. Statutes preventing discrimination against black people in housing and in contracting for private education have been upheld under the Thirteenth Amendment. but also can pass remedial legislation designed to remove the incidents or badges of slavery. an investigating committee is limited to the scope of the legislative resolution authorizing it. the legislation is not enacted unless the president signs it. Inherent power in domestic affairs In domestic affairs. the president is under the obligation to execute the laws and to spend funds that Congress directs the president to spend. Katzenbach v. The Investigatory Power As an incident to its power to legislate. b. The legislative power The legislative power of the president is limited to proposing legislation and vetoing bills that have passed Congress. Congress may conduct investigations on matters on which it might take action even if there is no specific legislation pending.

1. Congressional Limits Upon The Executive a. vice president. the president's inherent authority is much more extensive. and judicial functions of government. Impeachment power The ultimate control that can be exercised by the legislature over the executive is impeachment. the president has the power to conclude treaties. and all civil officers of the United States can be removed from office by impeachment and conviction. The grounds for impeachment are treason. Power to refuse to disclose information — executive privilege The president has an absolute privilege to refuse to disclose confidential communications dealing with military or diplomatic secrets. the president has the power to make executive agreements with foreign nations. and to impose conditions when granting a pardon. With the approval of two-thirds of the Senate. bribery. the president has the power to remove appointees without cause except those appointed to fixed terms on independent regulatory commissions. The Nixon impeachment process raised the question whether noncriminal activity that constituted a breach of trust or a violation . the president has the power to deploy military forces. if self-executing. The Powers Of The President As Commander-In-Chief As commander-in-chief. none of the three branches of government has unfettered power in its own sphere because of restraints imposed by other branches. As an incident to the power to make appointments. both of which are given to Congress. but not to congressional legislation. which. FEDERAL INTER BRANCH RELATIONSHIPS - Although it was the intent of the framers of the Constitution to prevent the abuse of power by separating the executive. 4. Article II. to seize private property. In addition. have no effect as law. 2.8 MicroMash MBE In Brief: Constitutional Law d. and a qualified privilege with respect to all other confidential communications. Powers Of The President Over International Affairs In international affairs. e. 3. to establish governments in occupied territories. or other high crimes and misdemeanors. such as the United Nations Charter. The pardon power The president has plenary power to pardon for federal crimes. have a status equal to that of laws passed by Congress. the president has the power to appoint officers of the United States. Nonself-executing treaties. The president does not have the power to declare war or to raise and support armed forces. such agreements have a status superior to state law. C. The qualified privilege is suspended when there is a substantial governmental interest outweighing the president's interest in preventing disclosure. during wartime. and. §4 of the Constitution provides that the president. legislative. The Appointment And Removal Powers As chief executive.

Congress has the power to override a veto by a two-thirds vote of each house. the president has the power to veto it within 10 days of the time it is sent to him or her. Where Congress has not mandated that the president spend specific money that Congress has appropriated. and Congress has no authority to override such a veto. because the president has a constitutional obligation to execute the laws. and disqualifies him from holding office again. A two-thirds vote is required for conviction. however. The public exposure of these inadequacies often serves to correct them. 2. Congress may bring to light inadequacies in the administration of the executive branch of government. Presidential veto power Once Congress has approved legislation. Investigatory power The power of Congress to carry on investigations is only incident to its legislative power. Congress can control the policies of the executive. the president can "pocket veto" a bill passed at the end of a congressional session by not signing it. The sole power to try impeachments is in the Senate. Historically. and in many instances the members of the executive branch make legislative policy determinations. Power and obligation to execute the laws The essence of the executive power is to execute the laws. Appropriation power Through its ability to refuse appropriations for activities. b. an action akin to indictment in the criminal law. In the process of investigating the executive branch for the ostensible purpose of finding the facts necessary to pass legislation. the president has the discretion not to spend it. Such . Delegation Doctrine Congress frequently vests substantial discretion in the president and presidential subordinates regarding the manner in which laws are executed. c. The Chief Justice of the Supreme Court presides over the impeachment trial of a president. in which case the proposed legislation will become law despite the president's veto. If Congress desires that a project go forward. b.MicroMash MBE In Brief: Constitutional Law 9 of the oath of office was an impeachable offense. however. Congress can mandate that funds be spent or that laws be carried out. If Congress adjourns within 10 days of the time the legislation is delivered to the president. Therefore. The Presentment Requirement And The President's Power To Veto Or To Withhold Action a. A conviction after an impeachment removes the official from office. 3. criminal conduct has not been required. In some cases that power is discretionary. However. and the president is required to spend them. it cannot become law without the presidential signature. The House of Representatives is given the sole power to impeach. it can mandate that appropriated funds be spent.

the speech or debate clause Members of Congress cannot be held accountable in any forum except Congress for acts that are an integral part of the deliberative and political process. the veto is legislation and therefore must follow the procedures prescribed in Article I — bicameral approval of legislation.10 MicroMash MBE In Brief: Constitutional Law delegation of power is constitutionally permissible unless there are absolutely no Legislative veto provisions have been employed by Congress to delegate authority. Judicial immunity Judges enjoy absolute immunity from any decisions made in their official capacity. Executive officials serving as presidential aides may sometimes be entitled to absolute immunity. Aides of members of Congress assisting them in performing these functions are also protected. presentment of legislation to the president. The test is not whether the statement is legally relevant. c. and the witnesses. provided that the statements are pertinent to the cause at issue. the attorneys. And Judicial Immunities a. while reserving to Congress the power to block specific actions or regulations. such as speaking or voting on the floor of Congress or conducting legislative hearings. the president's veto. but whether it has reference and relation to the subject matter of the action. Executive. if the presidential aide can show that the responsibilities of her office embraced a function so sensitive as to require a total shield from liability. However. private suits for damages based on the president's official acts do not warrant such an intrusion. b. Legislative immunity. While the separation of powers doctrine does not bar every exercise of jurisdiction over the president. . This means that officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. The Speech or Debate Clause does not protect a member of Congress from criminal prosecution for taking a bribe to influence his vote. Legislative. and that she was discharging that function when performing the act for which liability is asserted. and Congress' power to override a veto. In defamation an absolute privilege applies to statements which are part of a judicial proceeding. including statements by the judge. 4. Executive immunity The president is entitled to absolute immunity from civil liability for damages predicated on official acts. a court. before exercising jurisdiction. Executive officials in general are usually entitled to only qualified or good faith immunity. must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the executive branch.

Health and safety regulation is a traditional police power of the states and can justify nondiscriminatory. Suits against the federal government The United States can sue a state without its consent. Immunity Of State Government a. and the fundamental limitation on the federal commerce power is the political process.MicroMash MBE In Brief: Constitutional Law 11 III. AUTHORITY RESERVED TO THE STATES 1. Immunity from regulation The federal government has the right to regulate the states. states may regulate commerce. Absent express congressional intention. INTERGOVERNMENTAL IMMUNITY 1. Taxation The federal government has the power to tax a state unless the function being taxed is one that can only be performed by a sovereign. is constitutional. Taxation of the federal government The federal government itself is exempt from direct state taxation. Negative Implications Of The Commerce Power If Congress fails to exercise the full scope of the commerce power. Congress has the power to exempt one of its instrumentalities from state taxation. not a judicial distinguishing of "traditional government functions. THE RELATION OF THE NATION AND THE STATES IN THE FEDERAL SYSTEM A." c. b. a state tax levied directly on a nongovernmental entity. such as requiring a state license for a contractor to work on a federal project. but may not be sued by a private citizen. The state may regulate the federal government if the state does not interfere with federal policies. 2. B. Regulation of the federal government The states cannot regulate the federal government in a manner that prevents it from carrying out its responsibilities. Federal employees are liable for state income taxes. b. provided that the state does not discriminate against out of state commerce and does not impose an excessive burden on interstate commerce. . but a state cannot sue the United States without permission. the economic burden of which is on the federal government. Immunity Of The Federal Government a. Immunity from suit A state may be sued by the federal government or by a sister state without its consent. c.

a. ad valorem taxes upon goods once they are physically within the state. (2) the tax must be fairly apportioned to prevent interstate commerce from paying more than its share of the tax burden. Limitations On State Power In Taxation a. Exceptions A state can. Foreign commerce The states do not have the power to tax imports. they are no longer immune from local taxation. The state has plenary control over the consumption of alcoholic beverages in that state under the Twenty-First Amendment. State power to tax interstate commerce 1) General principles There are four conditions which must be met for a state to tax interstate commerce constitutionally: (1) there must be a substantial nexus between the taxing state and the subject of the tax — a due process requirement. in the absence of congressional legislation to the contrary. (3) the tax must not discriminate in favor of local commerce and against interstate commerce. even though they are in their original packages. The state of domicile need not apportion property taxes unless it can be shown that the property was habitually employed in another state. b. but may impose nondiscriminatory. and (4) the tax must be fairly related to the services provided by the state. Flat fee license taxes for itinerant merchants (drummer taxes) . provided they are in a state for a sufficient period to obtain a taxable situs and the tax is fairly apportioned. discriminate between out of state and resident buyers when it acts as a market participant. even though there are delays in transit.12 MicroMash MBE In Brief: Constitutional Law incidental burdens on interstate commerce so long as there is no less burdensome means the state could use to protect its interests. 2) Stream of commerce Ad valorem taxes on property cannot be constitutionally levied upon goods in interstate commerce. States cannot impose ad valorem property taxes on instrumentalities used in foreign commerce or otherwise use taxes to discriminate against foreign commerce. goods are in interstate commerce until they reach their destination. 4) Privilege and license taxes Privilege and license taxes are constitutional even on the privilege of conducting an interstate business within the state. 3) Instrumentalities of interstate commerce Instrumentalities of interstate commerce are subject to property taxes. 2. provided that they meet the basic test described above. Once movement from one state to another has begun. If the goods come to rest and can easily be diverted into local commerce.

d. enter into a compact with another state or foreign country. a state act that contravenes federal policy will be invalid. C. they may not wage war. State Act Enhances Federal Policy If a state act furthers a congressional policy. or pass ex post facto laws. Direct Conflict A state statute that conflicts with an act of Congress is invalid under the Supremacy Clause. however. States lack the power to increase the qualifications for Congress set forth in the Constitution and therefore could not impose term limits on senators and representatives elected as part of the state's congressional delegation. a state can exact a discriminatory fee for the right to do business in the state. or tax imports and exports. Specific Constitutional Limitations On State Power The states are specifically forbidden from making treaties with other countries. c. NATIONAL POWER TO OVERRIDE STATE AUTHORITY 1. If the seller has sufficient contact with the state imposing the use tax. Since foreign corporations are not citizens for purposes of the Privileges and Immunities Clause. As expressed in the Tenth Amendment. pass bills of attainder. States may not establish a monetary system. the federal government is one of specific delegated powers.MicroMash MBE In Brief: Constitutional Law 13 are likely to be found unconstitutional because they place a higher tax burden on the itinerant merchant than on the local merchant. 3. Without congressional authority. that state may require the seller to collect the use tax and remit the proceeds to the taxing state. but may impose a use tax on sales made outside the state if the goods are thereafter brought into the state. maintain a peacetime army. and impliedly forbidden from interfering with the conduct of foreign relations by the federal government. the state may not tax it in a discriminatory manner. leaving the residuum of sovereignty in the states. Equal protection or privileges and immunities Net income taxes on out of state residents are constitutional if they are apportioned to the income earned within the state. and are assessed on the same basis as resident income taxes. even if Congress did not preempt the field. . Due process requirements A state may impose a sales tax only on a transaction that is consummated in the state. 3. it is unlikely that it will be invalid unless Congress has preempted the field. Once a foreign corporation is qualified to do business in the state. State Act Contravenes Federal Policy On the other hand. 2.

At common law. 5. an agreement that vested a tri state governmental body with regulatory powers that ordinarily would be exercised by the federal government would require congressional approval. and there is a need for a uniform system of national regulation. Since preemption is a matter of congressional intention. Enforcement of foreign judgments Under the Full Faith and Credit Clause. the federal legislation is very detailed. . on those situations where the interstate compact "tends to increase the political power of the states that may encroach upon the supremacy of the United States. a judgment rendered by a court in State X must be given the same effect in State Y that it would have in State X. The Full Faith and Credit Clause has often been interpreted narrowly. The factors that will help a court find preemption are that the legislation is in a field not traditionally controlled by the states. Article 1. Clause 3 provides that a state is forbidden to enter into such a compact without approval of Congress. records and judicial proceedings of every other State. Congressional consent is not necessary for every agreement between states. and can nullify a court decision that prohibits states from acting because of the negative implications of the commerce power. a second suit was necessary in State Y in order to establish the original judgment as enforceable there. Full Faith And Credit Article IV. which provides in numerous instances for a registration of the foreign judgment in the second state and thus eliminates the necessity of a second suit to enforce the judgment. Interstate Compacts Interstate compacts are agreements between states concerning cooperative efforts at various governmental functions. Many states. Congressional Authorization For Otherwise Impermissible State Activity Congress can specifically permit the states to regulate interstate commerce. §10." For example. 2." "Public acts" include both statutes and case law. however.14 MicroMash MBE In Brief: Constitutional Law Even if there is no conflict. a state statute will not be vatic it it attempts to legislate in a field in which Congress has intended to exercise exclusive legislative power. a. RELATIONS AMONG STATES 1. allowing the forum state to apply its own statutes as long as the forum has a legitimate interest in applying its law and has sufficient contacts with the parties or the subject of the litigation. The Full Faith and Credit Clause does not require a state to apply another state's laws in violation of its own legitimate public policy. the federal government has a substantial interest in the field regulated. it can either be explicit or implied in congressional legislation. have adopted the Uniform Enforcement of Foreign Judgments Act. D. Section 1 of the United States Constitution (the Full Faith and Credit Clause) requires that "Full Faith and Credit shall be given in each State to the public acts.

State Involvement When the state acts in concert with individuals. Furthermore.MicroMash MBE In Brief: Constitutional Law 15 A "foreign judgment" generally means any judgment. Defenses to recognition or enforcement Fundamentally. a. the Court strikes a balance in determining whether there is state action. a foreign judgment will not be recognized or enforced where it was rendered without proper judicial jurisdiction or without requisite due process. but the implications of this decision have not been developed. Kraemer found state involvement in the enforcement by judicial decree of a racially restrictive covenant. the law of another state or another country has no extraterritorial effect. . Individuals do not have to comply with due process or equal protection standards. A state may. STATE ACTION AND THE ROLE OF THE COURTS The Fourteenth Amendment applies only to the states. b. such as running a company town or conducting an election. Judicial involvement Shelley v. under certain circumstances. 2. refuse to recognize or enforce foreign laws or rights and liabilities based thereon on the ground that the law in question is a penal or revenue statute. makes it appropriate to subject an individual to Fourteenth Amendment requirements. its officers and agents. 3. decree. State Agency The Fourteenth Amendment applies to the state. IV. or the quality of the individual's activity. Public Function The Fourteenth Amendment is applicable to actions of private individuals who act without state involvement when the private activity takes over what is essentially a public function. INDIVIDUAL RIGHTS A. State action is not found in the mere enactment of a statute giving a lienholder a right to "self help" upon default by the debtor. The problem for the Court is to determine when state participation with individuals. A judgment that is not on the merits will be recognized in other states only as to the issues actually decided. Such foreign law will generally be recognized and given effect extraterritorially. or order of a court of the United States or of any other court which is entitled to full faith and credit in a sister state. and all of its political subdivisions. subject to certain limitations. and is more likely to find state action in cases of racial discrimination than in violations of the First Amendment or of procedural due process. however. that it violates the public policy or positive law of the forum state. 1. or that to give effect to the foreign law would prejudice the state's own rights or the rights of its citizens.

1. Fifth. d. Citizens. Economic interests The substantive Due Process Clause is no longer a limitation on the power of the legislature to enact economic legislation. .e. subsidies The furnishing of services on a non-exclusive basis to an individual or entity is not state action. State licensing and regulation The fact that a state licenses or regulates an industry does not make the business of that industry state action. exclusive aid) to a racially restricted school. e. the right in limited instances to privacy. unless the statute is arbitrary and unreasonable and has no legitimate purpose. is state action. c. B. special. or the right to an abortion. the legislature must justify the legislation by a compelling state interest or it will violate substantive due process. and portions of the Sixth and Eighth Amendments to the Constitution have been incorporated into the Due Process Clause of the Fourteenth Amendment by a standard which makes guarantees that are fundamental to the American scheme of justice applicable to the states. Substantive Due Process a. Family and privacy interests When legislation affects personal and family rights such as the right to marry.. aliens. DUE PROCESS The First. and constitutes state action. Business involvement A partnership-like arrangement between the state and an individual is sufficient involvement for state action. and corporations are "persons" within the meaning of the Due Process Clause. but a state subsidy (i. State services vs. c. Retroactivity Statutes that retroactively deprive individuals of vested economic rights violate the Due Process Clause. b. State encouragement The repeal of a fair housing law by referendum and the prohibition by constitutional amendment of a new fair housing law is state encouragement of racial discrimination.16 MicroMash MBE In Brief: Constitutional Law b. or permitting such a school to use state facilities on an exclusive basis. Fourth.

but not in the case in which they are announced. If the taking is held invalid because it did not serve a public purpose. where the regulations constitute a taking. A land use regulation. and landmark preservation are usually found to be valid regulations under the police power instead of compensable takings. the Fifth Amendment to the Constitution prohibits the United States from taking private property for public use without just compensation. even if enacted for valid police power purposes will constitute a taking if it deprives the owner of all economically viable use of the land. Court opinions defining vague statutes can cure vagueness for future cases. While the government can condition a permit upon the landowner providing some kind of public benefit. There are a number of situations. Requirement of a public purpose A purported taking is invalid if it is not for a public purpose. b. Any physical intrusion on private property by the government or the establishment of a non-possessory property interest such as an easement constitutes a taking. a. The only basis upon which the state could justify a regulation depriving the land of all economic value under the police power is to prove that the building on the land would constitute a common law nuisance. as coterminous with the scope of the sovereign's police power. . That amendment is applicable to the states through the Fourteenth Amendment. the regulation must also substantially advance the governmental objective being pursued and there must be a tight fit between the regulation and the governmental interest. 2. the benefit which the landowner is to provide must be roughly proportional to the burden which she is placing upon the public by obtaining the permit. To be valid regulation instead of a taking.MicroMash MBE In Brief: Constitutional Law 17 d. Takings Both the federal government and state governments and instrumentalities of both have the power to take private property by eminent domain. environmental protections laws. Zoning ordinances. Vagueness in criminal statutes Due process also requires that criminal statutes be specific enough so that an individual knows what conduct is prohibited before she takes action. the court has construed a "public purpose" broadly. however. the landowner is entitled to damages for the temporary taking during the period when he was unable to use his property because of the invalid taking. What constitutes a taking? Not all actions by the government that regulate the use of land and in many instances substantially diminish its value are takings for which the government must pay compensation. However. However.

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3. Procedural Due Process The state must afford some form of procedural due process when it interferes with a property right or the liberty of a person, in order to ensure the accuracy of the determination by the government official and to avoid arbitrary government action. a. When must the government conform to due process requirements? 1) Loss of liberty Due process must be followed when an individual is tried under the criminal justice system, when it revokes parole or probation, or cancels the "good time" credits of a convicted criminal. In determining whether a sentence is to be commuted or parole is to be granted, due process safeguards must be maintained when an expectancy, rather than possibility, of commutation or parole is created. Civil commitment proceedings and infliction of physical punishment are deprivations of liberty interests necessitating procedural due process. 2) Fundamental constitutional rights The government must observe procedural due process when it regulates fundamental constitutional rights, such as the control of speech through obscenity laws, or the right of association in the family unit. 3) Property interests The right to drive an automobile is a protected property right, not a privilege. The government may not terminate an individual's participation in a welfare program without a hearing but may legislatively modify such benefits. A person holding government employment under an express or implied tenure possesses a protected property interest, but there is no property right to have the government renew a fixed term contract. State law will ordinarily determine if there is a protected property right. A government employee whose contract is not renewed because of alleged exercise of First Amendment rights is entitled to a hearing in which the state must show that it would have terminated his employment even if he had not attempted to exercise those rights. The temporary deprivation of property through prejudgment attachment is interference with a property right that requires notice and hearing. Damage to reputation alone is not a protected property right, but a hearing is required if damage to reputation is coupled with damage to another interest. 4. What Process Conforms To The Requirement? The three factors determining the amount of process required are: (1) the private interest affected by the official action; (2) the risk of erroneous action through the procedures used, and (3) the governmental burden in providing process. At a minimum, procedural due process requires that the affected person be given notice of the official action to be taken against her and an opportunity to be heard. The hearing may promptly follow instead of precede the official action if there is sufficient reason for this procedure. If the deprivation is more substantial, such as the revocation of parole,

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of charges, the opportunity to confront the evidence against one, the opportunity to present evidence, and the right to a neutral factfinder who makes written findings. Arbitrary presumptions that prevent persons deprived of liberty or property rights from presenting their claims are likewise unconstitutional. C. EQUAL PROTECTION OF THE LAWS
The purpose of the Equal Protection Clause is to ensure that the government will treat similar persons in a similar manner. Legislation rarely achieves this goal, however, because a statute places individuals in a class who should not be there, or fails to include persons who should be. The crucial test for equal protection is the degree of tolerance that the Court will afford to legislation failing to classify persons appropriately to achieve a governmental purpose. The Equal Protection Clause applies to the states because it is part of the Fourteenth Amendment, and to the federal government through the Due Process Clause of the Fifth Amendment. Citizens, aliens, and corporations, provided that they are qualified to do business within a state, are protected by the Equal Protection Clause. A statute many times will classify explicitly, but those who administer a statute may make classifications not present in the statute itself. A statute, even if neutral on its face and in its application, may have a discriminatory purpose and effect.

there are additional procedural requirements. These requirements include written notice

1. Fundamental Interests
If a fundamental interest is affected by the classification, the strict scrutiny test is applied. The state, not the plaintiff, must demonstrate that the classification is necessary to satisfy a compelling state need. Fundamental interests include the right to vote, the right to fair representation, the right to be a candidate, the right to travel, rights as a criminal defendant, and the right to marry.

a. Regulation of voting and legislative representation 1) The right to the franchise
While the state has the right to limit the franchise to residents of the community, it may not impose a durational requirement of more than fifty days. It may not impose property or interest qualifications, nor may it condition the right to vote upon the payment of a poll tax. While the constitutionality of literacy tests has been upheld, their operation has frequently been suspended by congressional action.

2) The right to be a candidate
The right to be a candidate and have one's name on the ballot is subject to more substantial governmental restrictions than the right to vote. The state may impose durational residency requirements, filing fees, and petitions signed by substantial numbers of voters. However, the Court will scrutinize the burdens and hold them unconstitutional if they unreasonably restrict ballot access.

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3) The right to fair representation A voter has a fundamental right to have his vote count as much as that of any other voter in the election of a legislative or governmental body. Legislative districts in both the House of Representatives and in the state legislature must therefore be uniform in size. A higher degree of mathematical precision is required in congressional districting, however, than for state elections. The "one person, one vote" principle applies to municipal elections, but not to the election of executives, to special purpose districts, or to purely administrative bodies. Flagrant racial or political party gerrymandering will be found unconstitutional. Multi-member districts are constitutional so long as they are not designed to reduce minority representation. States lack the power to increase the qualifications for Congress set forth in the Constitution and therefore could not impose term limits on senators and representatives elected as part of the state's congressional delegation. b. Other fundamental interests Because the right to travel is fundamental, discrimination in the payment of welfare benefits on the basis of length of residency is unconstitutional. In criminal cases, the state must afford the indigent defendant counsel for at least one appeal, and a free transcript for that appeal. It may not imprison a defendant for failure to pay a fine. The right to marry is also a fundamental interest. 2. Nonfundamental Interests Under ordinary or lower-tier equal protection standards, the Court will not substitute its judgment for that of the legislature. The legislature may fail to include in a class those who should logically be in, and include those who should logically be left out. Mathematical certainty is not required, and some unfairness will be tolerated so long as the classification is reasonable. a. Economic regulation Economic regulation is judged by the rational purpose test, and is rarely held unconstitutional under the Equal Protection Clause. b. Social welfare legislation When no fundamental interest is affected, the Court has applied the rational basis test to governmental benefits. 3. Suspect Classifications a. Race A classification by race, even if it treats all races equally, is suspect and will not be sustained in the absence of a compelling state interest. Schools classified by race under state law must be desegregated immediately. The Court will devise a desegregation plan using general equitable powers if the school board fails to do so. Once a racially neutral plan is in place, the plan need not be altered to meet changing

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housing patterns. School districts that have segregated schools because of segregated housing patterns are not in violation of the Constitution unless a discriminatory purpose can be found. If part of a school district is deliberately segregated, there is a presumption of unlawful purpose in the rest of the school district. A desegregation remedy cannot include districts beyond those engaged in unlawful segregation. When race is used as a criterion for governmental action, it must meet the strict scrutiny standard and will not be upheld unless the remedy is closely tailored to remedy the effects of past discriminations.

b. Alienage
Discrimination against aliens is permitted by the federal government under its power to further foreign policy, and by state governments to prevent aliens from entering the governmental process and those non elective government jobs which formulate or execute public policy. However, a state may not discriminate against aliens with respect to education, public welfare, or the right to earn a livelihood or engage in the "learned professions." Discrimination against illegal aliens in these matters is subject to an intermediate level of review.

c. Quasi-suspect categories
An intermediate standard of review is applied when the legislature uses sex or legitimacy as a classification. Under this standard the governmental objective must further important governmental purposes, there must be a close relationship between the classification and its purposes, the legislature must specify the valid objectives which it is trying to further, and the legislature must tailor the classification to achieve the objective.

1) Illegitimacy
Illegitimacy is not a truly suspect classification, but the state interest in promoting morality or the unity of the traditional family is not sufficient to justify discrimination against illegitimate children. Statutes denying illegitimate offspring rights to Workers' Compensation benefits, wrongful death benefits, and intestacy benefits when the parent child relationship is readily proven have been held unconstitutional. However, a state may distinguish among different classes of illegitimate offspring based on whether paternity was acknowledged or adjudicated to promote the orderly disposition of an estate.

2) Gender
Discrimination on the basis of sex is valid if it serves important governmental purposes, and is substantially related to those purposes. Classifications based upon the notion that a female is to stay in the home and raise children are invalid, but those classifications designed to remedy past discrimination have been upheld.

4. Nonsuspect Categories
Poverty, age, and mental retardation are not suspect categories.

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D. PRIVILEGES AND IMMUNITIES CLAUSES
1. Under The Fourteenth Amendment The Fourteenth Amendment Privileges and Immunities Clause only protects matters which are incidents of national citizenship, such as the right to travel from state to state, to vote in national elections, and to petition Congress. 2. Under Article IV, §2 — The Comity Clause The Comity Clause protects a citizen of one state from discrimination on that basis in another state in fundamental matters. To justify discrimination on a fundamental issue, the state must show a substantial relationship between the discrimination against the nonresidents and the problems caused by them.

E. THE OBLIGATION OF CONTRACTS, BILLS OF ATTAINDER, AND EX POST FACTO LAWS
1. Obligation Of Contracts While the Constitution flatly prohibits states from impairing the obligation of contract, the Court has permitted states to construe contracts very narrowly in favor of the government, and has permitted legislation to affect the remedy for breach of contract so long as there is some means of vindicating the right. States may impair the obligations of contracts if there is a valid police power reason. However, a more stringent standard is applied when a state attempts to avoid the obligation of a contract to which it is a party. Such an impairment will be upheld only if less drastic means were not available, and the reason for the impairment was not foreseen at the time of the contract. A state statute imposing substantial burdens on one contracting party that is enacted for the benefit of a narrow group will also violate the Contract Clause. 2. Bills Of Attainder States and the federal government are forbidden to pass a bill of attainder, Article 1, §§9 and 10. A bill of attainder covers legislative acts which applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. Legislation prohibiting specific government employees from being paid constitutes an unconstitutional bill of attainder. Legislative punishment also includes legislation whose purpose is deterrent or preventative. General regulations that do not target specific individuals, however, are not within the constitutional ban. 3. Ex Post Facto Laws Article 1, §§9 and 10 of the Constitution prevent both the federal government and the states from passing an ex post facto law — that is, a law which has a retroactive punitive effect. A law is an ex post facto law if it (1) creates a new crime or alters the definition of an existing crime so that an act which was not criminal at the time the statute was enacted is made criminal, 2) redefines a crime so that an act which was criminal at the time the act was passed is made a more serious crime, 3) increases the punishment for an act which was a crime at the time the act was passed, or 4) changes the rules of evidence

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which permits a conviction for an existing crime on lesser evidence than was required at the time the act was committed. The ex post facto prohibition applies to criminal conduct only. Any punishment in the form of imprisonment or a criminal fine would constitute punishment for criminal conduct. However, a statute that retroactively provides that a felony conviction disqualifies an individual from a professional license or subjects her to deportation does not constitute an ex post facto law. Statutes that increase the penalties for individuals who have had previous convictions and who commit a crime after the law was enacted do not constitute ex post facto laws even thought the crimes which serve as the basis to increase the penalty were committed before the law increasing the punishment was enacted.

F. FIRST AMENDMENT FREEDOMS
1. Freedom Of Religion And Separation Of Church And State There are two different prohibitions on the power of Congress with respect to religion contained in the First Amendment and carried over to the states through the Fourteenth Amendment. The Establishment Clause focuses upon government aid to religion and whether such aid promotes particular religious beliefs. The Free Exercise Clause prohibits governmental encroachment on an individual's religious freedom. a. The Establishment Clause The present tests to determine if governmental activity is constitutional under the Establishment Clause, all of which must be satisfied, are: (1) Does the activity reflect a secular legislative purpose? (2) Does it have a primary effect that neither advances nor inhibits religion? (3) Does it avoid excessive entanglement between church and state? Under the above tests, the loan of textbooks to parochial school pupils, college dormitory construction, and Sunday closing laws have been upheld, but prayers in public schools, payment of the teachers' salaries, and tax credits only available to parents of parochial school children have been held unconstitutional. b. Free exercise of religion 1) Freedom of thought or belief The state does not have the power to regulate or prescribe manifestations of thought or belief. 2) Regulation of activity based upon belief The state must justify regulation of activity based upon religious belief by a compelling state need. However, if religious belief engenders activity harmful to society, regulation of such conduct will be permitted. The time, place, and

it can be regulated to protect valid governmental policy divorced from the content of the symbolic expression itself." The guarantees of the First Amendment are protected from abridgment by the states by the Fourteenth Amendment. for example. 3) Judicial resolution of church disputes Courts may not decide ecclesiastical questions to resolve secular disputes concerning internal church management or church property. or the right of the people peaceably to assemble and to petition the government for a redress of grievances. speech is exercised in conjunction with action. such as picketing to prevent ingress and egress. If the action is coercive. the agrarian lifestyle of a religious community would render additional education detrimental in the eyes of that religious community.24 MicroMash MBE In Brief: Constitutional Law manner of religious activity can be regulated by narrowly drawn statutes that do not discriminate on the basis of religious belief. 2) What constitutes regulation of content? If the government classifies speech according to its content. Freedom Of Expression And Association The First Amendment provides in part that "Congress shall make no law abridging the freedom of speech or of the press. Regulation of the communicative aspects of expression 1) What constitutes speech? In many cases. Even though the action is intended to be symbolic speech. While Congress need not exempt religious objectors from the draft. nor require education beyond the eighth grade if. it will be considered symbolic speech. because truth is more likely to emerge if all ideas may be freely expressed. . it is regulating speech by content. While the state has an interest in compulsory education for children. and because free speech is an end in itself in a civilized society. requires individuals to promulgate speech. Speech is protected by the Court because uninhibited speech is essential to the political process. or places a dollar limitation on the amount to be spent to proliferate speech in a political campaign. it cannot require a public school education. only the sincerity of the belief may be challenged. the state cannot inquire into the reasonableness of those beliefs if they are made a ground for exemption. If that action is primarily a form of communication (a substitute for words. a. 2. such as wearing a black armband). Doorto-door solicitation to publicize religious beliefs and the incidental sale of religious literature are also constitutionally protected activities. the state power to regulate the speech coupled with action is significantly greater than it is to regulate pure speech.

. (a) Clear and present danger Speech in the political sphere can be regulated only when the speech creates a "clear and present danger" of the evils that the state has a duty to prevent. justifies the invasion of free speech. (b) The administration of justice as a compelling state need The clear and present danger test has been applied to state laws prohibiting the criticism of judges. but can require him to stop speaking if there is a genuine likelihood of immediate violence. Regulation of speech merely because it is likely to provoke a hostile reaction from an unreceptive audience is rarely justified. or (2) the speech can be shown to be beyond the protection of the First Amendment or entitled only to marginal protection. the Court has held that before the state can proscribe the content of speech. but can regulate speech that advocates illegal action. however. An order by a judge to prevent the press from publishing statements made by the accused is unconstitutional unless the gravity of the evil. and required contribution disclosures serve the important state purpose of preserving the integrity of the electoral process. good faith grand jury investigation. Congress cannot regulate the content of speech when the speaker is advocating abstract doctrine. (c) The election process as a compelling state need A limitation on the total amount a candidate can spend on his own election. discounted by its improbability. denial of the right must be necessitated by a compelling governmental interest and must be narrowly tailored to serve that interest. In its most recent formulations. is unconstitutional. Although the right of access to criminal trials is not absolute. or on the amount that an individual might spend on political activities or on contributions to support a ballot measure. a restriction on campaigning near polling places. The state may not prohibit a witness from divulging her own grand jury testimony after the grand jury proceedings are concluded when there is no longer a compelling need to preserve secrecy. it must be directed toward inciting imminent lawless action and must be likely to incite that action. a limitation on campaign contributions. The First Amendment does not create a privilege in news reporters to refuse to disclose the source of their information in the course of a legitimate.MicroMash MBE In Brief: Constitutional Law 25 3) Content regulation of protected speech must be justified by compelling state interest Regulation of speech by content is generally invalid unless: (1) the state can show a compelling need closely related to the regulation. The government has an affirmative obligation to protect a speaker before a hostile audience.

but which is not traditionally used for speech related activities. and manner of speech The government has substantially greater latitude in regulating the time. it may require the electronic media to give persons whom it . place. and military bases are closed areas where the government need not grant access or free speech rights. One cannot successfully challenge the constitutionality of a statute in a prosecution for contempt for violation of an injunction brought pursuant to that statute. Jails. passengers in a public bus have no constitutional right to prevent the broadcast of unwanted commercials. Regulation of the time. libraries. and manner of speech A licensing statute controlling speech that confers excessive discretion on a public official is overbroad and invalid on its face. Public parks and streets are areas traditionally used to express views. place. If the statute is impermissibly overbroad or vague. Licensing statutes cannot discriminate on the basis of the content of speech. place. 4) Regulation of the media While the state may not require that a newspaper give individuals a right to publish in that paper. 1) The nature of the forum (a) Public forum If a speaker desires to communicate in a public forum. The interests to be balanced are the state's requirement of public peace and the orderly flow of transportation and the method used to regulate speech. can be regulated to prevent the speech from interfering with their governmental functions. one must apply for a license under a narrowly drawn statute before a defense that the statute is unconstitutional as applied will be sustained.26 MicroMash MBE In Brief: Constitutional Law b. and only a narrow type of restriction on speech is permitted. (b) Semipublic or private forum The use of property open to the public. and manner of speech than in regulation of its content. Private property that is not within the state action concept can be regulated by the owners without regard for the rights of others to speak. however. private government offices. failure to apply for a license does not prevent a challenge to the constitutionality of the statute. but cannot completely ban door-to-door solicitation. 2) The interests of privacy and tranquillity as limitations on the time. such as schools. and courthouses. and manner of speech The government has the right to limit the use of loudspeakers in residential areas under narrowly drawn statutes. versus the means and location used by the individual to promulgate the speech. 3) Licensing as a control of the time. place. the state cannot completely prevent such speech on the ground that an alternative forum is available. However. A statute requiring a mailer to remove an addressee's name from a mailing list is constitutional.

and manner regulations. and c. lack serious literary. Regulation of unprotected speech Traditional First Amendment analysis classifies certain categories of speech as unprotected by the First Amendment and subject to any rational regulation. This concept has eroded so that almost all content-related regulation of speech must be related to an important governmental purpose. An individual can be convicted for advertising in a manner designed to appeal to the prurient interest.MicroMash MBE In Brief: Constitutional Law 27 attacks a right to reply. the challenged material: a. so that the officer has little or no discretion to determine what material shall be seized. b. However. the government can prohibit material that is offensive but not obscene from being broadcast during daytime or early evening hours. Immorality. even though the material itself is not obscene. Because of the ability of radio broadcasts to intrude into the home and be heard by the young. in a manner similar to time. A jury will decide each of these matters as a question of fact. political. there must be authorization for seizure by a judicial officer that specifically identifies the material to be seized. must depict or describe sexual conduct in a patently offensive way. or scientific value. Private possession of child pornography may be prohibited. but will not have unbridled discretion. and nudity by itself are not necessarily obscene. must appeal to the prurient interest of an average person applying contemporary community standards. Child pornography is unprotected by the First Amendment. sexual expletives. must. States have greater leeway in regulating child pornography because of its harm to the children . there is no constitutional right to purchase air-time to promulgate a message. The Court has permitted content regulation of adult motion pictures and nude dancing which were not obscene. The right to privately possess material depicting or describing adults engaged in obscene acts is constitutionally protected. To be obscene. Before the state can seize allegedly obscene material. taken as a whole. but the right to show it to consenting adults or to sell it is not. it is not entitled to First Amendment protection. place. c. The state also has greater rights to regulate the content of sexual material exhibited to minors than it does to consenting adults. artistic. The difference in result is because there is a finite supply of radio and television frequencies. 1) Obscenity If speech is found obscene.

A prospective employee cannot be required to take an oath concerning past conduct in joining an organization. but may not deny admission for political association unless the candidate knowingly belonged to a subversive organization with a specific intent to further its ends. The state may ask a bar candidate questions concerning his knowing membership in subversive organizations. but the outright prohibition of advertising in the professions and price advertising on drugs has been held unconstitutional. licenses. 2) Other unprotected speech.28 MicroMash MBE In Brief: Constitutional Law involved and because its value is de minimis. she may be discharged. knows the illegal ends of the organization. Information given pursuant to a grant of immunity may be used to terminate employment. and narrow in scope. or must merely pledge allegiance to constitutional processes. Regulation of or imposition upon public employment. . a speaker cannot be punished for words that are offensive but do not tend to invoke an immediate breach of the peace. However. It may deny employment based upon membership in an association only if an individual is an active member of a subversive association. unless the oath specifies that it was knowing membership with specific intent to further illegal purposes. However. d. However. 2) Admission to the bar The state has a right to inquire into the character of candidates for admission to the bar. Such pornography need not be obscene under the Miller standard to be regulated. It is subject to reasonable regulation for the protection of consumers and other legitimate governmental interests. "commercial speech" does not enjoy the same amount of First Amendment protection of content as that enjoyed by other forms of speech. fighting words. concise. and has a specific intent to further those ends. or benefits based upon exercise of expressive or associational right 1) Public employment The government may not condition public employment upon the waiver of First Amendment rights. If an oath is a requirement for public employment. and offensive speech Words which by their very utterance tend to incite an immediate breach of the peace are not protected by the First Amendment. even though he did not have specific intent to further the purposes of those associations. if she is given immunity and still persists in claiming the privilege against selfincrimination. e. The employee may not be dismissed for a claim of Fifth Amendment rights. Regulation of commercial speech Corporations and other business associations are entitled to the protection of the First Amendment when speaking on issues of political or public interest. it must be clear.

State law governs libel and slander actions against private individuals. Mere membership in an organization cannot be made criminal. a private figure can recover presumed or punitive damages without proof of actual malice. Procedural problems peculiar to the first amendment 1) Prior restraint If the government restrains speech prior to the time it is published. the Court has limited the right of the government to obtain membership lists. 2) "Overbreadth" A statute will violate the First Amendment if." he may collect any damages allowed under state law. Once a public figure satisfies the New York Times test by proving "malice. the purpose of the organization is exclusive. including punitive damages. 2) Private figures Libel suits by private figures on matters of public concern are governed by Gertz v. it also regulates protected speech.MicroMash MBE In Brief: Constitutional Law 29 f. She may recover only actual damages (special or out-of-pocket losses. or persons who inject themselves into a public controversy (public figure only with respect to that controversy). Regulation of defamation and invasion of privacy 1) Public officials and public figures The First Amendment only applies to defamation in the form of libel against media defendants. the government regulation will undergo more searching scrutiny than if the speech is punished after it has taken place. She may not recover punitive damages without proof of malice. humiliation. and mental suffering). however. Any system of prior restraint of expression comes before the Court with a heavy presumption against its constitutional validity. he must show that the falsehood was published either with knowledge that it was false or with reckless disregard for whether it was false. h. in its attempt to regulate speech in a permissible manner. plus loss of reputation. Robert Welch. g. If the defamation does not involve matters of public concern. and nonmembers cannot participate in critical activities of the association. Sullivan holds that for a "public figure" to prevail against a media defendant. New York Times v. When disclosure of membership would destroy the right of association. and in most cases must prove negligence. The plaintiff may not recover on strict liability. The freedom of association includes a right not to associate with certain types of persons. This overbreadth concept . An organization may exclude selected groups if the organization is relatively small. Public figures are either public officials or persons who have achieved substantial fame or notoriety (public figures in all contexts). Freedom of association The First Amendment protects the right to join with others in the exercise of First Amendment rights.

because a statute restricting speech that is overbroad has a chilling effect upon the attempt to exercise First Amendment freedoms. An individual does not have the right to raise the argument that a statement is vague with respect to a third party but not to herself. 3) "Vagueness" A statute can be challenged for vagueness if it does not specify in precise terms the activity that is forbidden. Vagueness differs from overbreadth as follows: a statute is vague when it does not precisely define an activity that is prohibited. and when the statute could not be narrowed by construction. A court can construe a statute so that its scope is precise. . and subsequent litigants will not be successful in a challenge on the ground of vagueness. A hard core violator to whom the statute is not vague cannot raise a vagueness defense. The Burger Court restricted the scope of the overbreadth doctrine by holding that an overbreadth attack on a statute regulating conduct as well as speech would only prevail when the overbreadth was substantial. whereas an overly broad statute prohibits activity which is protected by the First Amendment. The reason a defendant is able to raise the defense of another party to a statute is that the person whose First Amendment rights are affected by an overly broad statute is unlikely to litigate the matter himself. The overbreadth doctrine does not apply to commercial speech.30 MicroMash MBE In Brief: Constitutional Law will permit an attack upon a statute on its face rather than as it applies to the particular litigant.

■ State governments or agencies are not citizens of a state for the purpose of federal diversity jurisdiction. ■ A federal court will abstain from a case asking for an injunction against the enforcement of a state criminal statute if a prosecution under that statute has commenced. . ■ Political subdivisions of a state can be sued by citizens in federal court because they do not enjoy the protection afforded a state under the Eleventh Amendment. STATE COURT JURISDICTION ■ Congress can require state courts to hear causes of action based upon federal statutes. 2.MicroMash ® BAR REVIEW BAR EXAM ALERTS AT-A-GLANCE CONSTITUTIONAL LAW I. ORGANIZATION AND RELATIONSHIP OF STATE AND FEDERAL COURTS IN THE FEDERAL SYSTEM 1. THE NATURE OF JUDICIAL REVIEW A. B. SUPREME COURT JURISDICTION ■ A state has the right to sue another state in the United States Supreme Court on behalf of its citizens on claims affecting a multiplicity of citizens (the parens patriae doctrine). ■ A private citizen can challenge the constitutionality of a state statute in a federal court by suing a state officer to enjoin the enforcement of the statute on the ground that it is unconstitutional. FEDERAL COURT JURISDICTION ■ A federal court has discretion to abstain from deciding an issue of state law if a decision by a state court on the state issue might obviate the need for a decision on a federal constitutional issue. ■ A private citizen cannot sue a state in a federal court.

3. ■ A case will be dismissed as not ripe if events that will raise material issues in the case have not yet occurred. Judges of such courts are not constitutionally entitled to life tenure. ■ A mere philosophical. STANDING ■ A person has standing by virtue of being a taxpayer only to challenge legislation authorizing expenditures on the basis that those expenditures contravene specific constitutional limitations on the spending power. • The Supreme Court has the right under the Constitution to decide which branch of government is vested with final authority to decide a particular matter. D. and an attempted appointment by Congress or by members thereof is unconstitutional. CONGRESSIONAL POWER TO DEFINE AND LIMIT JURISDICTION ■ Congress has control of the jurisdiction of the federal courts and can establish or abolish lower federal courts. ■ Congress cannot interfere with inherent judicial functions in courts it has created. ethical.2 MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts ■ There is no direct right of appeal to the Supreme Court from a federal district court decision holding an act of Congress unconstitutional. ■ Due process requires that there must ultimately be a right of appeal to an Article III court from the decision of an Article I court or an administrative body. ■ Standing exists in a party that has a close relationship to the party actually injured if the injured party is unlikely to successfully assert its rights. ■ Congress cannot alter the jurisdiction of the Supreme Court in such a way as to interfere with the Court's essential function of preserving constitutional order. or intellectual interest in the outcome of a case is not sufficient to qualify for standing. 2. The only specific constitutional limitation on the spending power ever found has been through the Establishment Clause of the First Amendment. . C. JUDICIAL REVIEW 1. POLITICAL QUESTIONS AND JUSTICIABILITY • Only the president has the right to appoint officers of the United States. MOOTNESS AND RIPENESS ■ A case will not be dismissed for mootness if the issue is capable of repetition and will consistently evade review. ■ Congress can set up courts pursuant to its powers under Article I of the Constitution.

and the plaintiff never has the burden when highly protected rights are involved. there is no jurisdiction for Supreme Court review. If. the denial of substantive due process rights that are highly protected. 5. the United States Supreme Court will not review an issue on the merits if it determines that the Constitution places final authority to resolve the issue in another branch of government. ■ There is no right to appeal a state court advisory opinion to the United States Supreme Court. on the other hand. even if it involves federal constitutional issues. because there is no case or controversy as required by the United States Constitution for federal court jurisdiction. the state must show that the classification has an important governmental objective and is substantially related to achieving those objectives. ■ The state never has the burden when only lack of rational basis must be shown. . or the deprivation of the right of free speech or of freedom of religion. ■ If constitutional litigation involves sexual discrimination. then the state ground is not independent and there is a basis for Supreme Court review. ■ Under the political question doctrine. the plaintiff must prove that the legislation lacked a rational basis.MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts 3 ■ While the Senate has the right to advise and consent on presidential appointments. ■ If constitutional litigation involves matters other than those described above. it does not have the right to advise and consent when the president removes officers of the executive branch. CONSTITUTIONAL LITIGATION ■ If constitutional litigation involves the strict-scrutiny tier of equal protection. the state must show: (1) a compelling state need and (2) that no less burdensome method would achieve that objective. 4. SUPREME COURT REVIEW OF STATE COURT DECISIONS ■ If a case has been decided by a state court on an independent state ground. the state court decides a state issue on the basis of federal decisions on the same point. even if the state court decides a federal issue in the case that is not essential to the decision.

COMMERCE POWER ■ Congress may exercise the commerce power to regulate purely local activities that have a substantial effect on interstate commerce. it has the power to regulate the manner in which black people are treated. Pursuant to that authority. 1. Congress can persuade the states and individuals to adopt measures that it could not directly require through legislation. AND FIFTEENTH AMENDMENTS ■ Congress has power under the Thirteenth Amendment to affect individual conduct. . ■ Congress may exercise the commerce power to regulate the conduct of private individuals with respect to racial discrimination (even though such private action could not be regulated by legislation under the Fourteenth Amendment) so long as the individual's conduct affects interstate commerce. the General Welfare Clause is not a source of congressional regulatory power. 2. not the commerce power. ■ Congress may delegate rulemaking power to an administrative agency. ■ While Congress can tax and spend for the general welfare. POWER TO ENFORCE THE THIRTEENTH.4 MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts II. but only to eradicate slavery or the effects of slavery. 4. TAXING AND SPENDING POWERS ■ Through Congress' power to condition expenditures on compliance with its standards. POWER OVER FEDERAL PROPERTY ■ The property power. ■ Congress holds all of the regulatory power of territories that would be possessed by the state legislature if the territory were a state. POWERS OF CONGRESS ■ The Supremacy Clause itself is not a source of congressional power. ■ Congress can achieve a regulatory effect through a taxing statute as long as the statute has a revenue-raising purpose. SEPARATION OF POWERS A. ■ Judges appointed to serve in the territories are not entitled to lifetime tenure. but cannot reserve to itself the right to change such rules by anything short of legislation adopted by the full constitutional process. is the best source of congressional authority to regulate or dispose of property owned by the United States. FOURTEENTH. 3.

disclosure can be required only when a specific communication is subpoenaed and a substantial governmental interest outweighs the president's interest in nondisclosure. states can tax buildings leased by the federal government and contractors doing business with the federal government. and does not unduly burden interstate commerce. B. B. THE RELATION OF THE NATION AND THE STATES A. III. ■ Executive privilege is absolute with respect to defense and foreign policy matters. • Congress has power under the Fifteenth Amendment to directly regulate voting procedures in the states for the purpose of eradicating procedures that affect the rights of minorities to vote or to have their vote counted. INTERGOVERNMENTAL IMMUNITIES ■ Absent congressional intention to the contrary. POWERS OF THE PRESIDENT ■ The president is obligated to carry out legislation mandating that the president act in a specific manner. ■ An individual can successfully defend against a contempt-of-Congress charge for failing to answer a question from a congressional committee only if the witness can show that the subject matter of the questioning was beyond the power of Congress to pass potential legislation or beyond the scope of the power delegated by Congress to that committee. as long as such tax is not discriminatory. Confidential communications between the president and advisors in all other areas are presumptively privileged. INVESTIGATORY POWER ■ Congress has the power to investigate and subpoena witnesses for the purpose of obtaining information with respect to potential legislation that it might pass. does not discriminate against interstate commerce.MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts 5 ■ Congress has power under the Fourteenth Amendment only to reach state action (or action accomplished under the color of state law) that abrogates the rights guaranteed by that amendment. 5. . AUTHORITY RESERVED TO THE STATES ■ A state has the right to regulate interstate commerce as long as it does not contravene an express federal policy. ■ The pardon power only extends to federal crimes. ■ The federal government has the right to tax and regulate the instrumentalities and employees of state government.

or treaties of the United States or acts done in furtherance of them. Congress has the ability to permit states to operate in areas where it has legislated. ■ States may not enact any legislation that affects foreign policy. STATE ACTION AND THE ROLE OF THE COURTS ■ The Supremacy Clause is the source of constitutional power for a court to hold state statutes and decisions unconstitutional because they conflict with the Constitution. ■ The police power is a source of state power. ■ A state acting in a proprietary rather than a regulatory capacity may discriminate in favor of local business and against interstate commerce. INDIVIDUAL RIGHTS A. ■ The negative implications of the Commerce Clause prevent a state from excluding trash from a sister state if its landfills accept in-state trash. even if the Supreme Court has held such burden or discrimination unconstitutional under the negative implications of the Commerce Clause. Congress may be said to have occupied the field and any state regulation (even if complementary to the federal legislation) will be preempted. not a source of congressional power. ■ The negative implications of the Commerce Clause prevent a state from requiring that a resource of the state be sold to in-state customers only. the court will consider whether the state used the least restrictive means to achieve a legitimate state objective. because foreign policy is the exclusive province of the federal government. ■ A state regulatory statute that discriminates in favor of local commerce and against out-of-state commerce is unconstitutional because of the negative implications of the Commerce Clause. laws. . ■ State legislation or decisions that are contrary to a federal policy expressed in an executive agreement are invalid. NATIONAL POWER TO OVERRIDE STATE AUTHORITY ■ Congress has the right to expressly authorize a state to burden commerce or discriminate in favor of local commerce. IV. C. ■ If Congress has provided a comprehensive scheme of regulation in an area.6 MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts ■ In determining the validity of a state action that burdens interstate commerce. unless Congress' intent was to allow state regulation.

the argument that it violates substantive due process should be considered. ■ The minimum necessary to satisfy due process is notice and an opportunity to be heard. ■ An economic regulation violates the substantive strand of the Due Process Clause if there is no rational basis for it. A judicial construction of the statute can cure the vagueness with respect to future violators. . C. absent a showing of a compelling state need. SUBSTANTIVE DUE PROCESS ■ When called upon in a multiple-choice question to consider all arguments attacking the constitutionality of a statute. but not with respect to any person charged before the decision was rendered.MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts 7 ■ A state or municipal law in conflict with a federal regulation dealing with standards applicable to federal offices is invalid because of the Supremacy Clause. ■ The activities of an entity in which the state has a partnership interest constitute state action. ■ An individual has a property interest in continued employment if the individual has an employment contract or tenure. The right to use contraceptives and the right of an extended family to live together are examples of such interests. ■ A state activity is no more likely to withstand constitutional challenge because it is part of the state constitution or enacted by referendum. and the burden on the government in providing process. especially if it can be shown that the statute operates in an arbitrary and unreasonable manner. and that it is difficult or impossible to find a legitimate reason for the legislature to pass such a statute. ■ The action of any political subdivision of a state constitutes state action. ■ The factors in determining what process is "due" are the type of interest infringed. ■ Substantive due process prohibits states from limiting fundamental privacy interests. ■ The activity of a state in regulating or taxing an activity does not render the activity itself "state action" subject to Fourteenth Amendment scrutiny. ■ Criminal statutes violate due process if they are so vague that they do not inform a citizen of the conduct deemed criminal. the likelihood of an erroneous decision. PROCEDURAL DUE PROCESS ■ Procedural due process is required only if the action of the decision-maker constitutes state action. B.

g. ■ The "one man. 3. However. EQUAL PROTECTION ■ The Equal Protection Clause is contained in the Fourteenth Amendment and does not apply to the federal government. two months) on the right to vote to assure that voters are bona fide residents. but can make distinctions where proof of the relationship is difficult. ■ A regulation or decision that classifies on the basis of race in order to remedy specific past racial discrimination is valid. PRIVILEGES AND IMMUNITIES CLAUSES ■ The Privileges and Immunities Clause of the Fourteenth Amendment applies only to the privileges of national citizenship and is rarely if ever a valid reason for holding a statute unconstitutional.8 MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts D. SUSPECT CLASSIFICATIONS ■ Neither the state nor the federal government can discriminate on the basis of race except to further a compelling state need. ■ The right to be free from poverty is not a fundamental right. or intestacy benefits based upon illegitimacy where the parent-child relationship has been adjudicated or acknowledged. 2. wrongful death benefits. QUASI-SUSPECT CLASSIFICATIONS ■ Discrimination on the basis of gender is valid only if it serves an important governmental purpose and is substantially related to achieving that purpose. which also indirectly discriminates by race. • The state may impose reasonable requirements regarding filing fees. ■ The state cannot deny workers' compensation benefits. E. one vote" rule applies to municipal legislative bodies. A state cannot discriminate on the basis of alienage except in elective governmental positions and nonelective governmental jobs that formulate or execute public policy. residency. ■ The federal government has broad discretion to discriminate on the basis of alienage in the furtherance of foreign policy.. is not unconstitutional unless there is an intention to discriminate by race. OTHER (NON-FUNDAMENTAL) RIGHTS ■ Economic regulation need only satisfy the rational-basis standard. the principles of equal protection are applied to the federal government through the Due Process Clause of the Fifth Amendment. . ■ The state may impose limited residency requirements (e. 1. and petition signatures to achieve ballot access. ■ A classification based upon a racially neutral principle such as residence.

■ State activity that aids all religions equally can still violate the Establishment Clause. conscientious-objector status) the courts have a right to examine the sincerity of the belief. however. FREEDOM OF RELIGION AND SEPARATION OF CHURCH AND STATE a. ■ When religious belief is the basis for resisting government rules (e. commercial speech. REGULATION OF CONTENT OF EXPRESSION ■ Action that is a substitute for words can be protected symbolic speech. burning draft cards). b.g.g. ■ State laws requiring that religious theory be taught in public schools violate the Establishment Clause. . FREE EXERCISE OF RELIGION ■ A state has the right to regulate action based upon religious activity if there is a compelling state need. and there is no excessive entanglement between church and state. ■ All speech is protected speech for purposes of content regulation except fighting words. ■ A compelling state need is present and the state can proscribe the content of protected speech that is directed toward inciting immediate lawless action and is likely to incite that action.. it can be regulated to protect a legitimate governmental interest divorced from the content of the symbolic speech itself (e. and to some degree.MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts 9 • The Privileges and Immunities Clause of Article IV of the Constitution is an alternative analysis where the state discriminates on a matter of fundamental interest in favor of its own citizens and against out-of-staters. obscene speech. defamatory speech. FIRST AMENDMENT FREEDOMS 1. Even if action is intended as symbolic speech. ■ Courts cannot decide ecclesiastical questions to settle disputes concerning church management or property. 2. FREEDOM OF EXPRESSION AND ASSOCIATION a. it has a primary effect that neither advances nor inhibits religion. ■ Neither the state nor the federal government can regulate the content of protected speech unless it can show a compelling state need. F.. but not the belief itself. THE ESTABLISHMENT CLAUSE ■ State aid to religions is constitutional only if the activity reflects a secular purpose.

political. libraries. AND MANNER OF EXPRESSION ■ The state cannot completely prohibit the exercise of free speech rights in a public forum such as streets or parks. or scientific value.10 MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts ■ Requiring an individual to display a message prescribed by the state is the equivalent of regulating the content of speech. lacks serious literary. artistic. ■ Unless the regulation of speech on private property becomes state action (as in the operation of a company town). c. and private governmental offices. ■ The state has an affirmative obligation to protect a speaker before an audience. but outright prohibition of commercial speech is unconstitutional. e. ■ Communications portraying nudity or sexual activity can be regulated concerning the time. and manner of their exhibition even if the communication is not pornographic and the regulation is content-based. REGULATION OF TIME. depicts or describes sexual activity in a patently offensive way. ■ The state has the right to prohibit the exercise of free speech rights in places closed to the public such as jails. the owner of private property can regulate and prohibit the exercise of speech on that property. place. COMMERCIAL SPEECH ■ Commercial speech can be subject to reasonable governmental regulation for the protection of consumers and other legitimate governmental interests. PLACE. but the speaker can be required to stop speaking if there is a genuine likelihood of immediate violence that the state cannot prevent. b. as long as the prohibition of speech does not turn on its content. military bases. ■ Child pornography is totally unprotected speech. but can regulate such speech pursuant to narrowly drawn statutes conferring limited discretion on officials to ban speech at particular times and places and in particular ways. REGULATION OF PUBLIC EMPLOYEES' SPEECH ■ A public employee's freedom of speech with respect to matters of public concern cannot be infringed unless the employer's interest in operating . and taken as a whole. and courthouses to prevent interference with governmental functions. ■ The state has the right to forbid speech near semipublic forums such as schools. OBSCENITY ■ Speech is obscene and subject to complete prohibition if it appeals to the prurient interest of an average person applying contemporary community standards. d.

MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts 11 the public service outweighs the employee's interest in expressing the employee's political views. unless there is a genuine emergency justifying an ex parte application. PROCEDURAL PROBLEMS PARTICULAR TO THE FIRST AMENDMENT ■ If a court has issued an injunction banning the exercise of free speech rights. a person of ordinary intelligence cannot distinguish permitted from prohibited activities) is unconstitutional on its face and can be successfully challenged even by those who could be regulated if the statute were clear and narrowly drawn.e. the constitutional issues raised by the issuance of the injunction cannot be litigated in a contempt prosecution for violation of the injunction. and manner of her expression..e. 3. . • A public employee who has joined a subversive organization cannot be dismissed from public employment unless the employer can prove that the employee would have been dismissed even if the employee had not exercised the right of freedom of association by joining the organization. ■ An individual is entitled to notice and a hearing before an injunction is granted limiting the time.. place. ■ A statute that is overly broad (i. prohibits protected speech as well as properly regulated speech) or vague (i.

The Fourteenth Amendment can include all of the amendments to the Constitution that are incorporated into it. An attempt is made here to review the pertinent characteristics of such clauses to assist in choosing the best one. alienage. such as the right to travel. The taxing power can be used for regulatory purposes as long as there is some revenue-raising purpose. The Privileges and Immunities Clause of the Fourteenth Amendment was made a dead letter by the Slaughter-House cases. The dormant-commerce power is also the most significant curb on state economic regulation. but is not a source of power to cajole states or individuals into acting. The Supremacy Clause is not a power of Congress. On the other hand. --. the Privileges and Immunities Clause of Article IV prevents states from discriminating against nonresidents in matters of fundamental interest unless the regulation is specifically targeted at a problem caused by such nonresidents. It is likely to be the best answer if the commerce power is not one of the choices presented. The Supremacy Clause is not the best answer unless there is a congressional statute or a constitutional provision that is in conflict with a state activity. it can be the best answer in a case where the First Amendment guarantees of freedom of speech or freedom of religion would be more precise. or sex. and is almost never the right answer. or marry. or the classification is made by race. The police power is an answer that will justify only state as opposed to federal governmental action. not to regulate activity. The Contract Clause has been revitalized in cases where the state is abrogating a contract to which it is a party. The Due Process Clause is the best argument that a statute is unconstitutional only if there is (a) state action and (b) a failure to grant a hearing or a violation of a personal or privacy right. The Commerce Clause is the most important source of congressional power to regulate. 12 MicroMash MBE In Brief: Constitutional Law Bar Exam Alerts FUNDAMENTAL CONSTITUTIONAL LAW ISSUES Many multiple-choice questions in Constitutional Law will list various clauses of the Constitution as the best answer to resolve the question presented. illegitimacy. and the state is interfering with a fundamental interest. vote. The Thirteenth Amendment and the powers of Congress under it is likely to be the right answer when the discrimination is by private individuals where activity cannot qualify as state action. The Equal Protection Clause will be the best answer where state action is present. The general-welfare power (or spending power) is only a power to spend money. It is the best answer when a result can be achieved only if an individual or state voluntarily cooperates with the federal government. Substantive due process on economic matters is a dead letter. Therefore. 1 . The commerce power has been the source of congressional power to regulate civil rights.

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ILLEGALITY. 1. PRE-CONTRACT OBLIGATIONS BASED UPON DETRIMENTAL 13 RELIANCE EXPRESS AND IMPLIED WARRANTIES IN SALE-OF-GOODS 14 CONTRACTS 1. MUTUAL ASSENT 1. IMPLIED IN FACT CONTRACTS AND QUASI CONTRACTS Implied-In-Fact Contracts Quasi Contracts 12 12 12 E. FORMATION OF CONTRACTS A. UNCONSCIONABILITY. 3. Offer And Acceptance Excuse Problems Of Communication And Battle Of The Forms Indefiniteness Or Absence Of Terms Infancy Mental Illness Intoxication Guardianship Corporate Incapacity Illegality Unconscionability Public Policy - 1 1 1 4 7 9 B. F. 2. 3. 2.MicroMash ® BAR REVIEW MBE IN BRIEF CONTRACTS Table of Contents I. Express Warranty Warranty Of Merchantability 14 14 . 4. 3. 1. 2. 5. 4. CAPACITY TO CONTRACT 9 9 10 10 10 10 10 11 12 C. 2. 1. AND PUBLIC POLICY 10 D. 2.

3. 5. C. B. ASSIGNMENT AND DELEGATION A. 3. 4.3. 5. BARGAIN ASPECT OF CONSIDERATION AND PROMISSORY ESTOPPEL 16 1. "Bargain" vs. BASIC CONCEPT LEGAL DETRIMENT 1. DELEGATION 19 STATUTE OF FRAUDS A. When Allowed Requirements Rights Of The Assignee 18 18 18 18 19 19 C. CONSIDERATION AND ITS SUBSTITUTES A. 2. "Reliance" Charitable Subscriptions Past Or Moral Consideration Debts Barred By The Statute Of Limitations Quasi-Contractual Recovery 16 16 17 17 17 III. 2. 3. THIRD-PARTY BENEFICIARY CONTRACTS A. IN GENERAL ASSIGNMENT OF RIGHTS 1. D. B. 4. Adequacy Of Consideration Pre-Existing Duty Rule Modification Of Contract Compromise Of Claims Illusory Promises 14 14 14 15 15 15 15 16 C. IV. 17 17 17 18 18 IN GENERAL DEFINITIONS VESTING OF BENEFICIARY'S RIGHTS DEFENSES B. 19 19 19 GENERALLY MEMORANDUM B. 2. V. Warranty Of Fitness For A Particular Purpose 14 II. . "Gift" vs.

Creation Of Condition Burden Of Proof On Performance Satisfaction Architect's Certificate Constructive Conditions Of Exchange Partial Performance Strict Performance By Seller Under The U. 6. CONDITIONS A. PAROL EVIDENCE A.C. D.C. EXPRESS CONDITIONS 1.C. 5. 4. 2. 3. Seller's Remedies Under The U. PROSPECTIVE INABILITY TO PERFORM. 2. 3. 5. TYPES OF CONTRACTS WITHIN THE STATUTE OF FRAUDS 20 1. 4.C.C. 2. 3. 3. Land Contracts Sale Of Goods One-Year Provision Suretyship Provision Executor-Administrator Provision Marriage Provision 20 20 21 21 21 21 VI. Waiver Election Estoppel 27 27 28 E. 27 ELECTION. Stoppage In Transit 28 28 iii . 4. CONSTRUCTIVE 1. OR ESTOPPEL 1. Buyer's Obligations Divisible Or Installment Contracts B. 24 24 25 26 26 C. B. 2. EFFECT ON OTHER 28 PARTY 1. INTENT OF THE PARTIES OPERATION OF THE RULE 22 22 22 23 23 23 23 23 24 VII. IMPLIED DUTIES OF GOOD FAITH AND FAIR DEALING 27 SUSPENSION OR EXCUSE OF CONDITIONS BY WAIVER. 2.

VIII. 3. 2. 4. 34 DECLARATORY JUDGMENT 1. 3. SPECIFIC PERFORMANCE.C. 2.C. Baxendale 37 37 38 38 H. 35 35 36 F. CERTAINTY. Expectancy Damages Nominal Damages 36 37 G. RESCISSION AND REFORMATION 1.0 Declaratory Judgment Rescission Reformation 34 34 34 34 35 35 E. At Common Law Anticipatory Repudiation Under The Uniform Commercial Code Multiple Recoveries Not Permitted When Does Election Occur Election Of Remedies Under The Uniform Commercial Code 32 32 32 C. 2. 2. AND 37 FORESEEABILITY 1. CONSEQUENTIAL DAMAGES. MEASURE OF DAMAGES IN MAJOR TYPES OF CONTRACT 36 AND BREACH 1. 6. 2. 2.C.C.C. ANTICIPATORY BREACH 1. TOTAL AND PARTIAL BREACH OF CONTRACT 1. Consequential Damages Causation Certainty Foreseeability And The Rule Of Hadley v. LIQUIDATED DAMAGES AND PENALTIES 39 iv . For Breach Of Contract By The 29 Seller 30 Seller's Remedies Under The U. ELECTION OF SUBSTANTIVE RIGHTS AND REMEDIES 1. 4. In General Factors Considered Real Property Limitations On Court's Powers To Order Specific Performance Specific Performance Under The U. 3. 2. REMEDIES A. 33 33 33 34 D. CAUSATION. 29 29 Buyer's Remedies Under The U. INJUNCTION AGAINST BREACH. 5. For Breach by Buyer B.

X. 2.I. Risk Of Loss Insurable Interest Title And Good-Faith Purchasers 39 39 40 40 40 41 IX. 2. Restitutionary Damages Reliance Damages 39 39 39 J. REMEDIAL RIGHTS OF DEFAULTING PARTIES AVOIDABLE CONSEQUENCES UNIFORM COMMERCIAL CODE ISSUES 1. K. L. B. Total Impracticability Partial Impracticability 41 41 41 41 42 C. 2. 3. RESTITUTION AND RELIANCE RECOVERIES 1. FRUSTRATION OF PURPOSE 42 42 DISCHARGE . IMPOSSIBILITY OF PERFORMANCE A. IMPOSSIBILITY IMPRACTICABILITY OF PERFORMANCE 1.

vi .

then the offer terminates at midnight of that day. A response to that question such as. For example." meaning that a person promises something if the other person either returns a promise or does an act. "I plan to sell my house for $25. then the contract is a "unilateral contract. Offer An offer is a communication that gives to the recipient of the communication the power to conclude a contract by accepting. Offers can be terminated in the following ways: 1) Lapse of time stated in the offer If the offer states a date upon which it is terminated. If a return promise is requested. What is not an offer Offers must be distinguished from statements of opinion. Offers must be distinguished from statements of intention." is probably not an offer. Termination of offers An offer must be accepted while it is still outstanding. "I'll sell it to you for $5. Advertisements normally are not offers unless they offer a reward. a statement by a physician that a person will be out of the hospital in two or three days is probably not an offer. Offer And Acceptance a. When a person says something like. the statement. Offers must be distinguished from invitations to deal or preliminary negotiations.000. then the contract is called a "bilateral contract. Another way of looking at an offer is as a "conditional promise. "We can quote you $5 per gross for immediate acceptance. c. A statement is an offer only if the person to whom it is communicated could reasonably interpret it as an offer.CONTRACTS I." b. Statements made in jest or anger are not offers. If the offer is terminated after a certain number of days . MUTUAL ASSENT 1. if someone is disgusted with his or her automobile and says." If an act is requested. FORMATION OF CONTRACTS A. The primary test of whether a communication is an offer is whether an individual receiving the communication would believe that he or she could enter into an enforceable deal by satisfying the condition." generally would be an offer. "What is your lowest price?" this is not an offer but merely an inquiry." this is not an offer. For example. Thus.

C. once the offeree has started performance of the act requested. then the offer terminates. 3) Incapacity By majority rule. some exceptions to this rule: • • Firm or Irrevocable Offer. then the time starts to run from the time the offer is received. it has been held that the doctrine of promissory estoppel prevents revocation of the offer. and (3) the assurance is contained in a signed writing.C. There are. the offeror cannot revoke. then the offer cannot be revoked. even though the offeree does not know of the death or mental incapacity. and the offeree discovers that the property has been sold to someone else. the offer terminates upon the death or mental incapacity of the offeror. In some cases. then the offer is automatically revoked. When the parties are dealing face to face or over the telephone. Promissory Estoppel. When the offer is for a unilateral contract. This occurs when the offeree relies to his detriment upon the offeror's promise to keep the offer open. unless the offeree knows of the offer and that its transmission was delayed. the offer is irrevocable if (1) the offeror is a merchant. even though equal publicity is not given to the revocation. 5) Rejection or counteroffer Rejection of the offer by the offeree or the making of a counteroffer by the offeree operates to terminate the offer. . • • A revocation is not effective until communicated (it must be received by the offeree). however. When the offer is to buy or sell goods. U. However. 2) Lapse of a reasonable period of time What is a reasonable period of time depends upon the circumstances of the case. (2) there are assurances that it will be held open. remember that actual notice of the intent to revoke a general offer is effective as to the person who receives that notice. This is true even though the offeror specifically states that it will be held open for a specified period of time.2 MicroMash MBE In Brief: Contracts ("This offer terminates in three days"). and there is no acceptance at the time they part. If consideration is paid for the promise to keep the offer open (an option contract). A general offer must be revoked by publishing the revocation in the same way in which the offer was publicized. 4) Revocation The basic rule is that an offer can be terminated by the offeror at any time. Firm Offer Rule. Part Performance. Even though the offeror does not directly inform the offeree of the intent to revoke. A classic example of this occurs when the offer is to sell real property. if the offeree acquires reliable information that the offeror has taken definite action inconsistent with the offer.

The offeree must know of the offer in order to accept. However. a letter offer is accepted by a letter. even when the offer says. a contract is formed. silence does not operate as an acceptance of an offer. it must be accepted by letter. 3) Silence as acceptance Normally. The trend. There can be no assignments of offers. then all risks of mistake or loss are upon the original offeror. In determining whether there is a valid acceptance. However. but completed after the offeree has learned of the offer. (b) Means of acceptance The traditional view is that if the offer is sent by letter. if sent by telegram. There can. if the acceptance letter is lost or delayed in transit. however.g. Thus. even though a promise is requested by the offeror. the rule is that the offeree must know only at the time that she completes the act. is to find any reasonable method of acceptance proper. "If I don't hear from you within 10 days. it must be accepted by telegram. this rule does not apply and its delay or loss prevents the formation of a contract. Only a person to whom an offer is made may accept. the following points must be considered. Acceptance 1) Generally An acceptance is an exercise of the power to conclude a contract given to an offeree by the offeror. etc. completion of the act will operate as an acceptance. when offers cross in the mail. However. Thus. Thus." no contract is formed by the offeree's remaining silent. then a return promise must be given. If the offer requests a return promise. I will assume you have accepted. then the act must be performed in order to accept. or if the contract becomes illegal. if the letter is misaddressed. d. When the same means of acceptance is adopted as is used to communicate the offer. be assignments of options. a contract is formed. (a) Bilateral vs. however. The acceptance forms a contract between the parties. However. and can specify how acceptance is to occur.MicroMash MBE In Brief: Contracts 3 6) Impossibility or illegality If the subject matter of the offer is destroyed. Hence. unilateral offer If the offer requests an act. 2) Method of acceptance The offeror is the master of the offer. a contract is formed if: . there is no contract. if the act is started without knowledge of the offer. e. the offer is terminated..

Also. whereas in the mutual mistake cases. this does not make it a counteroffer. or subtracts from the terms of the offer. it is reasonable that the offeree should notify the offeror if she does not intend to accept. and the offeree intended to accept by silence. or subtractions from the terms of the offer operate to make the attempted acceptance a "counteroffer" which. Article 2 of the U. However. This is not true if the letter is misaddressed. if the offer does not note the kind of title to be given in a sale of real property.g. notice must be given of the return promise. Cases.C. When the contract is for the sale of goods. i. the offeree must give notice of acceptance. Excuse a. a letter sent by the offeree operates as an acceptance as soon as it is placed in the mailbox. either party can enforce the contract on its terms unless the party knew or had reason . Hence.. a party is excused from performance.e. 2) Unilateral mistake Unilateral mistake means that only one of the parties is mistaken. in legal terms. additions. 2. a response by the offeree that purports to be an acceptance operates as an acceptance even though it changes. Any changes." the acceptance is valid provided that marketable title would be required by law. adds to. Under a literal reading of the code (§2-207). or because of previous dealings or otherwise. notice of acceptance is required only when the offeror is not likely to become aware that the act is being performed. however. an acceptance becomes valid when posted. is a rejection of the offer and the making of a new offer by the offeree. e. have held that a material change in the terms will prevent the formation of a contract under the code provision. However. the offeree has remained silent. Counteroffers The basic rule is that the acceptance must be on the same terms as the offer. suggestions or inquiries in a response by the offeree do not amount to a counteroffer. and the offeree requires "marketable title. no relief is granted. Here." In the unilateral mistake cases generally. even though the offeror has not as yet received notice.4 MicroMash MBE In Brief: Contracts • the offeror has given the offeree reason to believe that the offer can be accepted by silence. Mistake 1) In general The law divides mistake into "unilateral mistake" and "mutual mistake. • 4) Notice of acceptance If the offer is for a bilateral contract. if the offeree has always accepted offers from this offeror in the past. If the offer is for a unilateral contract. For example. e.C. applies a different rule with regard to counteroffers.. if the acceptance simply spells out the details of the transaction.

Actually. but the telegraph company transmits the telegram so that it contains a lower price term. Misunderstanding If the prospective parties to a contract manifest think they are agreeing to the same terms but in fact assent to different terms. A has no right to avoid the contract because reformation adequately remedies the mistake in drafting the written agreement. Misrepresentation. whereas it was valued at $750 as a breeding animal. or the party had a duty to disclose the fact as to which the other party was mistaken. 3) Mutual mistake Mutual mistake means that both parties were mistaken as to an essential element of the contract. a contact is made at the lower price and it can be enforced in spite of the mistake.000. a misrepresentation made in connection with an agreement between parties may prevent the formation of a contract or make a contract voidable. Under the Restatement (Second) of Contracts § 162. 4) Reformation When reformation of the contract is available to cure a mistake. nondisclosure." If the parties fail to include a provision regarding the assumption of the $100. A similar situation arises when there is a mistake in a telegraph transmission.MicroMash MBE In Brief: Contracts 5 to know that the other party was making a mistake. it is also fraudulent if the . there is no contract. A can obtain reformation of the agreement to reflect B's promise. For example. b. it was worth $80. 2) Elements of fraudulent misrepresentation In general.000 and to "assume a mortgage in the amount of $100. fit only for meat. it is clearly fraudulent. in the leading case. assume that A agrees to sell Redacre to B. the cow was "with calf" As a meat animal. with no intent by the parties to take a risk on this element of the transaction. there was a contract to sell a cow. and fraud 1) Relationship to tort law In contract law. There must be a substantial difference between the deal as contemplated and the actual deal. Here.000 mortgage. a misrepresentation is an assertion that is not in accord with the facts. with both parties believing that it was a barren animal. neither party can avoid the contract. if the buyer accepts. Rescission of the contract was granted. c. and neither knows or should know that there is a misunderstanding that causes them to assent to different terms. If the misrepresentation is made knowingly (with scienter). with B agreeing to pay $50. The sender may want to sell the goods at a specific price. For example.

or (b) knows that she does not have a basis for her assertion. he is estopped from asserting that the contract is void. A voidable contract can be ratified after the fraud is discovered. (c) he knows that disclosure would correct a mistake of the other party as to the contents or effect of a writing evidencing or embodying their agreement. i. 3) Nondisclosure A person's nondisclosure of a fact known to him is equivalent to an assertion that the fact does not exist only if: (a) he knows that disclosure is necessary to prevent some previous assertion from being fraudulent. (b) he knows that disclosure would correct a mistake of the other party as to a basic assumption. Undue influence and breach of a confidential relationship A plaintiff need not meet the same standards to avoid a contract that must be met in the case of fraud where there is a trusting relationship between the contracting party and a person in whom she places trust and confidence. occurs when the fraudulent misrepresentation prevents a party from knowing the character or essential terms of the transaction. In most cases.. Where. it is called "fraud in the inducement. 4) Effect of fraudulent misrepresentation (a) Fraud in the factum Fraud in the factum. d. The distinction is more important when the rights of third parties are involved. the apparent contract is void.6 MicroMash MBE In Brief: Contracts person either (a) does not have confidence in the truth of her assertion. whether the contract is void or voidable is immaterial because the person has a defense in both cases. usually because he is sophisticated in business relationships and the other is dependent. regardless of fraudulent intent. but a void one may not be. or (d) the other person is entitled to know the fact because of a confidential or fiduciary relationship between them. and nondisclosure would amount to lack of good faith and fair dealing. no contract is formed. 1) Undue influence Undue influence occurs in a relationship between two parties where one is dominant. In such cases. however. either because of lack of education and experience in the financial world or because the dependent person has diminished mental capacity many times caused by advanced age. or as it is also called fraud in the execution." and the contract is voidable. the person could have discovered with the exercise of reasonable diligence the character or essential terms of the transaction. In addition there is a relationship of trust between the dominant and dependent person. The rationale of the modern theory is that a contract is voidable whenever the misrepresentation is material. Where that type of relationship . (b) Fraud in the inducement When the misrepresentation is used to induce someone to enter into a contract.e.

g. even though it states terms additional to or different from those offered or agreed upon.. a strong person taking the other's hand and compelling her to sign a contract. usually described as fiduciary relationships.C. Generally. or where the dominant person has assisted the dependent person in making a testamentary disposition. When the duress is in the nature of a threat. e. financial advisor and client. duress can result in either a void or voidable contract. then the contract is voidable.MicroMash MBE In Brief: Contracts 7 exists. The most common examples of such fiduciary relationships occur between trustee and beneficiary. Duress Like fraud. the contract is void. a "threat" that one "will never talk to the person again" if she refuses to enter into a contract is not duress. The burden of proving that the contract is fair is usually placed upon the fiduciary. and in some cases parent and child. His affirmative duty to disclose facts is much higher when there is a possibility of undue influence. The dominant person may have the burden to show that a contract was fair to the dependent person before he can withstand an action to avoid the contract. doctor and patient. lawyer and client. where the higher standards of conduct in contractual dealings (described above in dealing with undue influence) arise out of the existence of the relationship itself These are generally described as fiduciary relationships and automatically impose of the party who has the fiduciary obligation of fair dealing and full disclosure. . 3. a person who has been the subject of undue influence can also avoid a contract with a third person. e. significantly changes the counteroffer rule in regard to contracts for the sale of goods. unless acceptance is expressly made conditional on assent to the additional or different terms. the person in the dominant position is held to a higher standard of disclosure and fairness than in the ordinary world of arms-length contracts. 2) Breach of a confidential relationship There are certain relationships between individuals. any wrongful act or threat that deprives a party of meaningful choice constitutes duress. For example. unless that person would be harmed because he is a bona fide purchaser. While most lawsuits in this area deal with situations where there is a contractual relationship between the dominant and the dependent person. However.C. Problems Of Communication And Battle Of The Forms Section 2-207 of the U. not all threats are improper. Section 2-207 (1) provides: A definite and seasonable expression of acceptance or a written confirmation which is sent within a reasonable time operates as an acceptance. When a party's agreement is the result of physical duress.

If the conduct includes some written expression of the parties' agreement. those implied by the code in the absence of agreement apply.8 MicroMash MBE In Brief: Contracts a. Under the section. The section specifically says that an order for goods may be accepted either by shipping the goods. nonconforming goods is an acceptance. or (3) are objected to by the offeror within a reasonable time after the offeror obtains notice of them. courts have either ignored or avoided this rule. Thus. thus. Under the plain wording of the U. then the terms of the contract include whatever terms the parties agreed to in writing. except that the changes may bear upon whether the writing can be construed to be a "definite" acceptance or confirmation. For example. presumably viewing it as too harsh and impractical. When additional or different terms become part of the contract Assuming that a contract has been formed even though the acceptance contains terms additional to or different from the offer. However. the shipment of defective. treats different and additional terms differently." unless acceptance is expressly made conditional on assent to the additional or different terms. it appears that a contract is formed whenever there is a "definite and seasonable expression of acceptance" or a "written confirmation. warranties. or (2) are objected to by the offeror in advance of the acceptance.C. if the writings of the parties agreed only to the description and quantity of the goods. Note that the U. and a contract is formed unless the . and so on. The extent to which the terms of the acceptance vary or add to the offer does not seem to be relevant. the place of delivery. However.C. the question arises whether these additional or different terms become a part of the contract formed. unless they: (1) materially alter the offer. As to other terms. by its terms. the code would supply the price term. courts have indicated a reluctance to find that a contract is formed. where the "expression of acceptance" deviates substantially from the offer. If both parties are merchants. When a contract is formed despite varying terms in the acceptance From a reading of §2-207(1). the rule applied on the Multistate Bar Exam is that different terms are incorporated into a contract if they meet the criteria stated above. It is only where the acceptance is expressly conditioned upon the offeror's assent to the new or different terms that a contract is not formed.. additional or different terms do become a part of the contract.C. b. Acceptance by conduct Subsection (3) of §2-207 provides for the formation of a contract by virtue of the conduct of the parties.C.. the code has rejected the bilateral-unilateral distinction. different terms (those that vary or contradict a term of the offer) never become part of the contract.C. an offer to buy or sell goods may be accepted in any reasonable manner. Under §2-206 of the U.. c.C. or by promising to ship them.

an order from a buyer for current shipment of goods may be accepted by the seller either by a return promise or by actual shipping of the goods. if the parties agree to the sale of a specific quantity of goods but do not agree on a price. disaffirmance is still allowed. intoxication. however. B. The U. CAPACITY TO CONTRACT Another requirement of a contract is that the parties be competent. or if the buyer accepts the goods. that if the offeror specifically requires a return promise or a completion of the act. For example. if so. Infancy a. The disaffirmance can be effectuated for a reasonable time after the infant reaches majority. Note. he may have a remedy for any damages resulting from the nonconformity. including conduct by both parties which recognizes the existence of a contract. Even if the infant misrepresented her age. The infant must restore any benefits received under the contract if possible. the infant still can disaffirm. has taken a different approach with respect to contracts within its scope. and corporate incapacity. a contract exists. Under the Code's general rule.MicroMash MBE In Brief: Contracts 9 seller notifies the buyer that they are not meant to fill the order. there is a contract for a reasonable price. Article 2 makes contracts somewhat easier to form. but if not possible. The buyer may reject them and sue for any damages resulting from the seller's failure to deliver conforming goods. Under §2-204(1).C. however. an offer to buy or sell goods normally can be accepted either by a return promise or by a performance of the act requested. it is voidable. This means that the infant may disaffirm the contract and avoid any liability under it. Under the Code. unless otherwise unambiguously indicated. There is no need to determine the exact time when a contract is made. Incompetency arises because of infancy. 1.C. This provision obviates the necessity of denominating a particular communication an "offer" and another an "acceptance. Disaffirmance When a contract is made by an infant." The general approach of Article 2 is to determine whether from the totality of the communication it is clear that the parties intended to enter into a binding agreement. guardianship. this must be done to effectuate an acceptance. a contract for the sale of goods may be made in any manner sufficient to show agreement. Indefiniteness Or Absence Of Terms At common law the courts were reluctant to supply terms to a contract if the parties had not agreed upon them and thus often held that an agreement which missed essential terms was not a contract because it was indefinite. . 4. mental illness or defect.

UNCONSCIONABILITY.10 MicroMash MBE In Brief: Contracts b. 4. Liability for necessities When necessities are furnished to the infant. The guardianship proceedings are treated as giving public notice of the incapacity of the ward. are illegal. Food. Guardianship A person has no capacity to incur contractual duties if his property is under guardianship by reason of an adjudication of mental illness or defect. etc. 2. may also be necessities. but the recovery by the person furnishing the necessities is on a quasi-contract theory. the infant must pay for them. but today most states take the position that if one party has performed. etc. C. narcotics addiction. aged. Contracts in restraint of trade are illegal. intoxication resulting from alcohol or drugs renders a contract voidable if the person entering into the contract was unable to understand the nature of the transaction. an automobile. Mental Illness If a party is adjudicated mentally incompetent and is under guardianship. depending upon the status of the minor. there may be recovery in quantum meruit. and clothing are clearly necessities. AND PUBLIC POLICY 1. Illegality If the performance that is to occur under a contract is illegal. the supplier can recover only the reasonable value of the services or goods. 5. By public policy. wagering contracts. The powers of a guardian are usually defined by statute. ILLEGALITY. Corporate Incapacity When a corporation acts ultra vires (outside its powers). Thus.. If a contract is made during a lucid period. the contract itself is illegal and is unenforceable. in most states. if there has been no adjudication or guardianship. and. On the other hand. an education. 3. the contracts made by the individual are void. usurious bargains. The policy of appointing a guardian is to preserve the property from squandering or improvident use. the contract is fully enforceable. Property under guardianship may be reached to satisfy the torts or quasi-contractual obligations of the ward. the contracts are voidable and must be disaffirmed. unless the person has been adjudicated an incompetent. and not the agreed upon price.. Intoxication Technically. or a convict. a. contracts in restraint of marriage are illegal. or because the person is a spendthrift. the contract is voidable. Types of illegal contracts Clearly. shelter. habitual intoxication. but covenants not to compete contained in a sale of a business or an employment contract will be enforced if they are reasonable in time and geographical .

This is true even if the seller knows of the illegal purpose. a contract whereby an employer promises to pay an employee for overtime work is enforceable by the employee. and deny recovery of any damages for A's failure to smuggle the goods into the country. Contracts to bribe an official and bribes themselves are illegal. Normally.. recovery may be allowed. either in an action on the contract or an action in quasi contract. 2) Divisible contracts In some instances.g.. b. provided he does not participate in the illegal purpose of the deal. For example. a contract to sell gambling equipment. a person can recover under the contract. if one party performs under the contract. The question whether a contract is unconscionable is for the court to decide. and the issue does not go to the jury. Exceptions 1) Ultimate purpose illegal If a contract has an ultimate purpose that is illegal. she cannot receive any compensation for the performance. and the more powerful party has attempted to limit severely the rights of the other party. 3) Rini Delia° (equally at fault) Where the parties are not in pari delicto (equally at fault). even though it is illegal to work overtime in the particular occupation. i. For example. but its performance is legal in itself. . or has taken unfair advantage.MicroMash MBE In Brief: Contracts 11 area.e. e. 4) Locus poenitentiae repudiation If one of the parties repents of the illegal bargain prior to the time of the illegal performance. the seller of gambling equipment would be able to recover the price. B painted A's house in return for A's promise to pay $500 and to smuggle goods into the country. c." Generally. provided he did not become involved in the gambling. as are contracts to commit a tort or a crime. it arises where the parties have unequal bargaining power. In such cases. The contract itself cannot be enforced. Effect of illegality The law will not enforce or even recognize transactions that are illegal. she is normally allowed to recover whatever was given for the promised performance. contracts are separable in that part of the consideration is legal and the other part is illegal. unconscionability goes to unfair dealings by one of the parties. the $500. the courts may allow recovery of the legal part of the promise. For example. Unconscionability Article 2 of the code provides that a court may refuse to enforce a contract or part of a contract on the grounds that it is "unconscionable. 2. The law also will not grant restitution if someone has paid another under an illegal contract.

Thus. the contract is called an "express contract. i." are not true contracts at all. A contract requiring an individual who needs an essential public service. Whether the contract is express or implied does not affect the legal relationship between the parties or the rules of law that apply to this relationship.12 MicroMash MBE In Brief: Contracts 3. to waive any claim for negligence on the part of the provider is likely to be found to violate public policy and therefore be unenforceable. 2. Implied-In-Fact Contracts The agreement or mutual assent necessary for the formation of a contract most frequently results from words expressed by the parties." Of course.. the law will restore the plaintiff to the position he or she was in prior to the transaction or event. conduct may also indicate assent or agreement. such as medical care. Such an obligation is very close to the type of obligation imposed by the law of torts. In some cases the court will specifically enforce the contract. the law imposes an obligation because it appears just. D. Thus. This is accomplished by awarding the plaintiff money damages in the amount of the value of the benefit. When this is the case. Rather. Many kinds of adhesion contracts are unenforceable because they are against public policy." Usually this is done by granting "benefit of the bargain" damages that will attempt to put the plaintiff in the position that he or she would have been in had the contract been performed. "contracts implied in law. this conduct indicates her intent to purchase the cigarettes. nor is recovery based upon a promise. They do not depend upon assent between the parties. and it has become associated with contract law largely because of the forms of action which were prevalent in early English law. the theory of the action is restitutionary in nature. is that the law will "enforce the promise. whether express or implied in fact.e. the law cannot "enforce the promise" as it does in contract actions. When the agreement is formed by virtue of conduct rather than expressed words. Public Policy Even if a contract is neither illegal nor unconscionable it may be unenforceable if it violates a significant public policy. Although the theoretical distinction between contracts implied in fact and quasi contracts is clear. the law implies a promise (establishes a duty) that the defendant must make restitution to the plaintiff of any benefit that the plaintiff has conferred upon the defendant. this gives rise to what is called an "implied contract. the differences sometimes fade and even appear entirely nonexistent in certain . A primary characteristic of a contract." or. if one takes a pack of cigarettes from the counter of a drug store. Quasi Contracts "Quasi contracts." However. in certain cases the terms of a contract are determined both by the expressed words of the parties and by conduct on their part. IMPLIED IN FACT CONTRACTS AND QUASI CONTRACTS - 1. will order the defendant to perform his or her promise. Since the defendant has not made a promise in cases seeking quasi-contractual recovery. In a quasi contract.

E. For example: In a contract for services where no price term is agreed upon. This occurs in the construction industry where the owner puts a contract out to bid. turning it into a contract even though the sub-bidder has attempted to withdraw the sub-bid.C. upon receiving the contract. Since the sub-bid is only an outstanding offer. then he has made a counteroffer and can no longer accept the original bid. In order to complete the job. Prior to submitting a bid to the owner for the entire job. There is one set of circumstances where the promissory estoppel substitute for consideration is the basis for keeping the offer open. In such a case. it is difficult to determine whether the law finds this obligation because it assumes that the parties implicitly agreed on the fair market value as the price for the services. . PRE-CONTRACT OBLIGATIONS BASED UPON DETRIMENTAL RELIANCE The general rule except for the case of firm offers under the U. He can enter into a subcontract with someone else for a lower price.C. even though the offeror has agreed to keep the offer open for a specified time. An offer can be made irrevocable if the offeror promises to keep the offer open for a specific period of time and that promise is supported by consideration. An option contract is then formed and the offeree usually pays an agreed amount to the offeror in order to make the offer irrevocable. the recipient of the services is obligated to pay the reasonable market value of the services. or because it believes that it is just to impose the obligation as a matter of law. When making the bid. the general contractor solicits bids for portions of the work from subcontractors.MicroMash MBE In Brief: Contracts 13 fact situations. the general contractor has a right to accept the sub-bid. which the subcontractors agree to leave outstanding for a reasonable time after the contract for the entire job is awarded by the owner. The sub-bidder has no right to require that the general contractor accept his bid if the general contractor is the successful bidder on the project. the subcontractor knows that the contractor is relying on it by using it in the calculation of his costs for the job in preparation for making his bid as general contractor. It would be unjust to permit the subcontractor to revoke that bid after inducing justifiable reliance. The agreement not to revoke the sub-bid offer is enforceable because it is supported by the substitute for consideration known as promissory estoppel. is that an offer is revocable at any time. If the general contractor attempts to negotiate a lower price with the sub-bidder. the general contract is not bound to accept it upon becoming the successful bidder for the general contract. the general contractor usually hires subcontractors to perform portions of the construction such as electrical and plumbing work. The contractor must accept the sub-bid within a reasonable time to turn it into a contract. There. The construction of most modern buildings is supervised by a general contractor who bids a specific price to the owner for the entire job.

You must look at the promise that the plaintiff is trying to enforce. a return promise to refrain from doing something. 2. Consideration can take the form of: • • • • a return promise to do something. Express warranties include almost any positive affirmation by word or conduct. Generally. B. Goods must be fit for their ordinary purpose and pass without objection in the trade under the contract description. the actual doing of some act." and must be conspicuous if in writing. that is given in exchange for the promise which is to be enforced. either an act or a promise. The warranty can be disclaimed in some instances by use of "as is" or similar language. Warranty Of Fitness For A Particular Purpose This implied warranty is given whenever the seller has reason to know that (1) the buyer has a particular use for the goods. " 3. . The trend is to allow a warranty action to lie even though there is no privity between the parties. this means you must ask whether or not something has been received for the promise. LEGAL DETRIMENT The basic concept of legal detriment is that there must be something of substance. Warranty Of Merchantability An implied warranty of merchantability is given whenever the seller is a merchant. EXPRESS AND IMPLIED WARRANTIES IN SALE-OF-GOODS CONTRACTS There are three basic warranties of quality: (a) express. including descriptions of goods. and determine whether or not that promise is supported by consideration. and whether this has been bargained for. but must use the term merchantability. The disclaimer may be oral. This warranty can be disclaimed by general language. 1. and (2) the buyer is relying upon the seller's skill to select the goods. (b) merchantability. but the disclaimer must be in writing. and (c) fitness for a particular purpose. Express Warranty All statements and promises made by the seller that form a part of the basis of the bargain are express warranties unless merely the seller's opinion or commendation of the value of the goods. CONSIDERATION AND ITS SUBSTITUTES A. BASIC CONCEPT There are two basic elements of consideration: (1) legal detriment. and disclaimer clauses are ignored when they conflict with these representations.14 MicroMash MBE In Brief: Contracts F. and (2) bargained-for exchange. II. or refraining from doing some act.

2. a promissory note which cannot be enforced. Compromise Of Claims If P claims that D owes her a thousand dollars. on the grounds of unconscionability. and P agrees to accept $500 in full satisfaction. However. the giving of it will constitute adequate consideration. and one of the parties agrees to compensate the other when the difficulties are discovered. however. a contract is unconscionable under this provision. because B is already under an obligation not to kill the cat. and then the entering into a new contract. allow enforcement of agreements to modify a contract under the following three rules: • where there has been a rescission of the existing contract by tearing it up or by some other outward sign. where there are unforeseen difficulties. Cases have held that when a consumer agrees to pay far in excess of the value of goods to be sold and there is some other indication of unfair dealing. adequacy of consideration is not an issue except when specific performance is being requested. e. so long as the promisor wanted that thing. Section 2-302 of the Uniform Commercial Code provides that a court may refuse to enforce a contract. or if something in-addition to the $500 is given to P. the debt will be discharged if the $500 payment is earlier than it had to be. Pre-Existing Duty Rule The pre-existing duty rule arises when the "legal detriment" is something that the promisee is already obligated to do. if A says to B.g. Adequacy Of Consideration Normally. 3. Modification Of Contract The traditional rule is that a modification of an existing contract must be supported by consideration.000 debt only where there is some dispute either as to the validity of the debt or the amount of the debt. whereby one of the parties must perform more than he or she was to perform under the original contract. "I will give you $100 in thirty days if you will refrain from killing my cat. 4." there is no consideration for A's promise to pay $100. For example. If P has an invalid claim against D. and D promises to pay money in return for P's dismissing the action or agreeing not to bring it. • • Article 2 modifies the doctrine of consideration in two ways: • • A promise to keep an offer open made by a merchant need not be supported by consideration if it is in writing and signed. the payment of the $500 operates to discharge the entire $1. but there is a requirement of good faith. Under §2-209 of the Uniform Commercial Code. no consideration is necessary to modify a contract for the sale of goods. The courts.. or a part of a contract.MicroMash MBE In Brief: Contracts 15 1. D's promise to pay the money is . where there are new obligations on both 'sides. Even though the thing bargained for may be worthless.

000 if you graduate from high school. but by the doctrine of promissory estoppel." this is an illusory promise and does not constitute legal detriment. It is possible that A wanted the promisee to graduate from high school and was bargaining for this. 5. Also. there is also the possibility of finding consideration from the exchange of promises among a number of contributors. output and requirements contracts are enforceable. 1. Charitable Subscriptions The doctrine of promissory estoppel is used frequently to enforce promises to charitable institutions. The concept is that the promise of each contributor operates as the consideration for the promise of each other contributor. "I will give you $1. hence.000 if you attain the age of 21. the promise is supported not by consideration. "Bargain" vs. If A says. Illusory Promises Some promises.000 is supported by good consideration. 2. it cannot operate as consideration. it must be bargained for in exchange for the promise." this may or may not be enforceable. the promise to pay the $1.000 in 1990. In charitable subscription cases. The act of attaining the age of 21 is not bargained for. The test in these cases is generally said to be whether the offeree could have reasonably believed that the intent of the offeror was to induce the action. if A says. are in fact illusory. the general rule is that a contract is enforceable so long as some notice must be given of the cancellation. If that is the case." this promise is not enforceable. provided P had a reasonable belief that she had a legitimate claim even though the claim turns out to be groundless. If A says." this is an enforceable promise. the promise is enforceable. .000.16 MicroMash MBE In Brief: Contracts enforceable. "I will pay you $1. For example. "Reliance" If A says. "I will sell you my car if I want to. so promissory estoppel does not apply. "I will give you $1. although appearing to be real. The law assumes that A was bargaining for the act. C. If that is the case. Likewise. there is no reliance on the promise. Promissory estoppel is very similar to consideration. and if this is the case. the only difference being that the legal detriment must have been suffered in reliance upon the promise rather than having been bargained for. It is also possible that the promisee may have relied upon the promise in completing the act. BARGAIN ASPECT OF CONSIDERATION AND PROMISSORY ESTOPPEL In order for the legal detriment to constitute good consideration. Thus. "Gift" vs. then the promise is enforceable under the doctrine of promissory estoppel. The donee is treated as a third-party beneficiary of the promises. Where a contract has been entered into but one party or the other may cancel. and the university purchases land in reliance upon the promise.000 if you give up smoking for a year. if A promises to give a university $1.

P feeds and houses the horse for two weeks awaiting D's return. This is a third-party beneficiary contract in which C is the beneficiary. THIRD PARTY BENEFICIARY CONTRACTS - A. Debts Barred By The Statute Of Limitations If D owes P $5. A agrees to paint B's house in return for B's promise to pay $500 to C. 5. but the statute of limitations has run on the claim. Thus. if P saves D's life and D then promises to pay $1. This promise would not be enforceable in many courts because it is for "past consideration. However. P would have to show that she reasonably expected to be compensated. The recovery in this case might be $50 if this were the reasonable value of the services and food provided." There was neither any bargain for the act. there is a modern trend toward enforcing such promises when necessary to "prevent injustice. C would be benefited by the theater but would not gain any rights against A or B under the contract. if A and B entered into a contract to build a theater and C owned a restaurant across the street. nor could P have relied upon D's promise in feeding the horse. D's promise is unenforceable." 4. but it would be unjust to treat it as a gift. D thanks P and promises to pay P $50 at the end of the month. B. When D returns. Rather. Because C is an intended beneficiary. D ought to compensate P for that benefit. nor could it have been done in reliance upon the promise. it would be based upon the theory that P rendered a benefit to D and. . and there is no contractual intent to benefit that person. For example: P sees D's horse running free and knows that D is out of town. a new promise by D to pay the $5.000. P may be able to recover in quasi contract. Quasi-Contractual Recovery Recovery may be available where the plaintiffs performance was neither bargained for nor in reliance on an offer. An "incidental beneficiary" is one who just happens to be benefited by the contract. III.000 because P has saved his life. IN GENERAL A third-party beneficiary contract results when two parties enter into a contract with the understanding and intent that the performance to be rendered by one will go to a third person. In order to recover.000 made after the running of the statute is enforceable without any new consideration. in justice. P's act of saving D's life could not have been bargained for. but it would not be based upon D's promise. DEFINITIONS An intended beneficiary is one to whom the promisee wishes to make a gift of the promised performance or to satisfy an obligation to pay money owed by the promisee to the beneficiary. For example. C has the right to bring an action against B for the $500. and that there was a benefit rendered to D by virtue of taking care of the horse. Past Or Moral Consideration Past or "moral" consideration is generally not recognized in the United States.MicroMash MBE In Brief: Contracts 17 3. For example. However. C would be an "incidental beneficiary" because there was no intent to benefit C.

the term "assignment" is often used to refer to both assignment of rights and delegation of duties. The promisor. as is the assignment of future or unearned rights. B. a discharge in bankruptcy. B can raise this as a defense in an action brought by C. if A fails to paint the house. Generally. ASSIGNMENT AND DELEGATION A. in our first hypothetical. but a beneficiary to whom the promisee owed money may sue either the promisor or the promisee on the underlying obligation. in our first hypothetical. DEFENSES The promisor can raise any defense against the third-party beneficiary that she had against the original promisee. but the debt that A owed to C was barred by the statute of limitations. Once the rights of a beneficiary "vest. 1. . IV. prohibitions against assignment in the contract are strictly construed. and delegation involves the obtaining of someone else to perform a party's obligations under a contract. Partial assignments are permissible. or (b) materially reduces the obligor's chance of obtaining performance. the parties retain the power to assign. This would be a so-called jus tertii (rights of a third party) defense. if C were a creditor beneficiary in our hypothetical. these defenses could not be raised by B in a suit brought by C. A beneficiary of a "gift promise" may sue only the promisor. ASSIGNMENT OF RIGHTS Almost all contract rights can be assigned. or by virtue of the fact that A had a defense against C. cannot raise rights of the promisee against the third-party beneficiary.18 MicroMash MBE In Brief: Contracts C. IN GENERAL Assignment refers to the transfer of rights under a contract. Thus." the original parties to the contract cannot modify it in any way. D. and the only consequence is that an assignment operates as a breach of the contract. When Allowed There can be no assignment which: (a) materially increases the duty or risk of the obligor. nor could A agree to a lesser payment in satisfaction of B's obligation. A could not discharge B from B's obligation to pay $500 to C. however. if C's rights had vested. Thus. or brings suit on the contract. nor can the promisor be discharged by the promisee to the detriment of the thirdparty beneficiary. For example. VESTING OF BENEFICIARY'S RIGHTS Only an intended beneficiary has a right to sue on the contract. changes position in reliance on the contract. Although the two are clearly distinct in concept. and the assignment is permissible. Even if validly prohibited by the contract. The rights of an intended beneficiary vest when he manifests assent to the contract.

However. In addition. The following contracts require a memorandum in most states: • • • • • • land contracts. GENERALLY The Statute of Frauds requires that there be a written memorandum of the contract in certain cases. sale of goods. DELEGATION The general rule is that obligations under a contract can be delegated. in a personal services contract involving taste or a special skill). suretyship contracts. STATUTE OF FRAUDS A. if the price is $500 or more. There is no consideration needed. promises by executors and administrators. a statement. the delegator is not released from liability. contracts that cannot be performed within one year. payment by the obligor to the assignor can be raised as a defense. or (b) when delegation is prohibited in the contract. provided the payment was made before the obligor had notice of the assignment. but takes subject to any defenses that could be raised against the assignor. B. Thus. there can be no delegation when (a) the other party has a substantial interest in having the individual perform (for example. and it must contain the essential elements of the deal. The assignee is also subject to any modification of the contract made prior to the time the obligor obtained notice of the assignment. When obligations are delegated. the other party to the contract becomes a third-party beneficiary to the contract of assignment and has a right to sue the delegatee immediately." is not an assignment. Also. signed by the party to be charged. "When the money comes in I will give you 10%. Thus. The memorandum need not be formal: . C. Requirements No formalities are needed for an assignment. Rights Of The Assignee An assignee takes all of the rights of the assignor. many states have writing requirements for contracts to make a will and real estate brokers' contracts. MEMORANDUM The memorandum that is required must be in writing. The rights of the assignee are subject to set-offs if the transaction giving rise to the set-off occurred prior to the time the obligor was given notice of the assignment. and recovery can be had against the delegator if the delegatee does not perform. contracts in consideration of marriage.MicroMash MBE In Brief: Contracts 19 2. but there must be a present intent to transfer the right immediately. 3. V.

mortgages. but if so. There can be no enforcement. contracts to buy or sell. exchange of correspondence. or a commitment has been made to purchase them elsewhere by the seller. 2. • Part Payment. beyond the quantity term actually stated in the memorandum. can be proved by parol evidence. (2) identify the parties. The essential elements may be in more than one writing.g. (b) a substantial beginning has been made on their production. Types Practically all contracts and conveyances involving real property are included and must be in writing. .000 widgets.C. and its prior existence can be proved by oral evidence. can serve as memoranda. requires a memorandum of the sale. the contract is enforceable. the contract can be enforced only to the extent of 10. Thus. leases. and interests created by restrictive covenants. b. the contract is taken out of the statute to the extent of payment. and (4) be signed by the person to be charged. Specifically. However.20 MicroMash MBE In Brief: Contracts receipts. An omitted term. Exceptions There are several exceptions to the sale of goods Statute of Frauds. and 10% of the price has been paid. etc. payment by the vendee alone is not sufficient to take the transaction out of the Statute of Frauds. telegrams. whereas the parties actually agreed to 15. and assignments of mortgages.000. TYPES OF CONTRACTS WITHIN THE STATUTE OF FRAUDS 1.. Sufficiency of the writing When the price of goods is $500 or more. Part performance Once a vendor conveys. e. When part of the purchase price has been paid. b. leases for less than one year in most states. there is no requirement of a writing. Land Contracts a. C. When (a) the goods are specially manufactured for the buyer. Hence. it still operates to satisfy the Statute of Frauds. (3) contain a quantity term. the U. and (c) the goods are not salable in the seller's ordinary course of business. such as taking of possession. The memorandum need not be delivered. grants of easements. the memorandum need only: (1) indicate that a contract has been made.000. • Specially Manufactured Goods. Excluded are licenses. such as the price term. if the memorandum calls for the delivery of 10. a mistake in the memorandum or the omission of other terms does not destroy its validity. and the vendee must pay the price even if there is no memorandum.. the contract can be enforced as to 20 widgets. Sale Of Goods a. however. showing the existence of the contract. one of the writings must contain something referring to the others. If it is lost or destroyed. Here.C. conveyances. if the contract calls for 200 widgets. There must be some other act.

" i. 6. If a memorandum sufficient against one party is sent to the other party. with performance to begin in December and to continue through November of the following year. Marriage Provision This is practically obsolete. Executor-Administrator Provision This is simply a special application of the suretyship provision. the contract may be enforced even though there is no writing. Part performance of the contract does not take it out of the Statute of Frauds.MicroMash MBE In Brief: Contracts 21 • that goods are received and accepted. 5. The contract is taken out of the statute to the extent Admission in Pleadings. his or her death would not constitute full performance. no writing is required as to the amount admitted. For example. no writing is required. If the party to be charged admits in the pleadings or otherwise in court the existence of the contract. Even though the person may die within the two years. • Failure to Respond to Memorandum. Thus. . It applies to any agreement in consideration of marriage except mutual promises by the two parties to marry each other. a contract can be enforced only as to those goods. • Receipt and Acceptance. One-Year Provision Contracts that cannot be performed within one year of their making must be in writing. 4. The year starts the day after the contract is made. If there is a possibility of performance within a year. The "main purpose rule" provides that if the main purpose of the contract is to benefit the promisor (surety). a contract "for life" is not covered by this provision of the Statute of Frauds because the employee might die within the year. not the length of performance. the contract is enforceable against the other party even though he has not signed it. a contract made in October. This provision does not include "indemnity contracts. However.. Full performance by one of the parties. however.e. Remember that the debt must be a debt of the estate in order for this section of the Statute of Frauds to apply. is clearly covered by the statute. those in which there is a promise to reimburse someone if she loses money on a deal. 3. rather than the principal debtor. a contract whereby a person is to work for "two years" is covered. Suretyship Provision When a person promises to answer for the debt of another. Again. if only part of the goods are received and accepted. the person's promise must be in writing in order to be enforceable. Neither partial nor full performance takes the contract out of this section of the Statute of Frauds. does take it out of the statute. who does not object within ten days. It is the time that the contract is made that is important. the only remedy is in restitution (quasi contract). and recovery can be had on the contract.

and that it simply adds to the agreement and does not contradict it. the court will then consider the proffered evidence to see whether it is covered by the agreement. the court may find that the oral evidence proves a distinct and separate contract. If there is a "merger clause" ("this writing contains the entire agreement of the parties and no evidence of other agreements is admissible"). When the parol evidence rule is applicable. no evidence can be admitted to vary. For example. If the evidence merely supplements (adds to the agreement as written). or subtract from the obligations as they are stated in the writing.22 MicroMash MBE In Brief: Contracts VI. unless the court finds that there is total integration or that the matter is covered by the agreement and the additional matters would naturally have been reduced to writing if the parties intended it to be a part of their contract. or no integration. It is possible that there is: • total integration: the writing is the final and complete expression of the agreement between the parties. the merger clause is evidence of the intent to integrate. OPERATION OF THE RULE If the proffered evidence contradicts the writing. add to. contradict. • . no integration: the writing in no way was intended to represent the agreement of the The intent of the parties determines whether there is total. it must be shown that the parties intended to adopt the writing as their agreement. Generally. and no extrinsic evidence can be introduced that varies or contradicts the parties' agreement on those matters. Normally. if the writing covers the sale of a house and the oral evidence goes to show a sale of personal property in connection with the sale of the house. and no evidence can be introduced as to any additional promises or representations made prior to the time of the writing. INTENT OF THE PARTIES In order to invoke the parol evidence rule. A. even where there is full integration. evidence may still be admitted under a number of theories: • the court may find that there is only partial integration. partial integration: the writing is a final expression of the parties' agreement to the matters covered in the writing. that the evidence is consistent with the writing. B. it is normally admitted if it is consistent with the writing. This is a question of fact but is determined by the court. the court may find that the evidence offered represents a separate deal. • • parties. that this matter is not covered by the writing. it is not admissible unless the court finds that there was no intent whatsoever to integrate the agreement of the parties into the writing. partial. PAROL EVIDENCE The parol evidence rule provides that when parties have adopted a writing as their agreement. the court looks at the document to determine how complete and how formal it is.

means the obligation exists under the contract. 3. a vendor and purchaser of real estate may provide that the contract is "conditioned upon the purchaser's ability to obtain a mortgage. the defendant must prove the happening of the condition to avoid liability. the evidence may be admitted to prove a defense such as fraud in the inducement." A condition precedent means the event must occur before any obligation to perform arises. failure of consideration. the plaintiff has the burden of proving that the condition occurred in order to recover. "if. . when a contract is for the enlargement of a photograph. the question is whether a reasonable person would be satisfied with the performance. however. but the language used in making the condition or event of discharge and the policies involved in allocating the burden of proof will be examined. if the condition is subsequent." "on the condition that. mistake. A condition subsequent. the evidence may be admitted for the purpose of interpreting the agreement." "provided that. . utility. " indicates a condition.g. The parol evidence rule does not apply in any way to evidence of agreements between the parties subsequent to the time the writing was signed." Express conditions can be identified by the language used. Creation Of Condition Performance by one or both of the parties may be made expressly conditional in the contract. on the other hand. but it will be discharged by the happening of an event. or that the contract is void or voidable. . or marketability. the person is not liable if he or she in good faith determines that the work is not satisfactory. CONDITIONS A. 2. such words as. whereas.. EXPRESS CONDITIONS 1. When the aesthetic taste of an individual is involved. VII. If. such language as "when I get my Christmas bonus . Satisfaction If a contract provides that performance will be "to the full satisfaction" of the other party.MicroMash MBE In Brief: Contracts 23 • • if there is an ambiguity in the contract. Burden Of Proof On Performance Express conditions can be "precedent" or "subsequent. For example." indicate an express condition. Normally. The only distinction between conditions precedent and subsequent is procedural. The Second Restatement does away with this distinction in terminology. this amounts to a condition. the contract requires performance not involving aesthetics but rather mechanical fitness. e. If the condition is precedent. failure of a condition. Also. The effect of such condition is that some event must happen before performance is due.

however. the courts have developed the doctrine of substantial performance. recovery can be had by the builder in quasi contract for the reasonable value of the work and the materials. the primary measure of damages is the contract price minus the cost of replacing or repairing any defect in the builder's performance. What constitutes "substantial performance" varies from case to case. The doctrine of substantial performance does not apply either to express conditions.24 MicroMash MBE In Brief: Contracts 4. Applicability When the breach is a "willful breach. Partial Performance a. and no recovery will be granted without it unless there is evidence of fraud or collusion between the owner and the architect. 2. or to contracts for the sale of goods. This doctrine provides that if a party substantially performs. if a builder agrees to construct a house on the owner's land. this is treated as an express condition. Meaning To alleviate the harshness of the above rule when a party has almost but not fully completed performance." b. and implies some attempt to cheat the other party or to provide less than was called for by the contract. but it means something like "almost fully performing." the measure of damages applied is the contract price minus any diminution in value resulting from the defective performance. This gives to the owner sufficient money to get what she bargained for. however. c. A willful breach. and the builder will not be able to recover unless the certificate is procured and presented to the landowner. B. Constructive Conditions Of Exchange When parties enter into a bilateral contract. requires something more than knowledge. Measure of damages When a builder recovers under the doctrine of substantial performance. CONSTRUCTIVE 1. the builder will not be able to recover from the owner unless he completes the building." no recovery is allowed under the doctrine of substantial performance. Architect's Certificate When a construction contract calls for an architect's certificate of performance. Even if the architect makes a mistake or fails to exercise reasonable judgment in refusing to give the certificate. There is no excuse for this condition. recovery will be denied on the contract. however. Thus. In such cases. Where. the doctrine of constructive conditions of exchange provides that a party to the contract cannot recover unless he or she has either performed or tendered performance to the other party. he or she can recover on the contract even though full performance has not been tendered. . constitutes "economic waste.

Destination contract: the seller must deliver the goods to a particular place. The basic obligations of a seller are: (1) to transfer ownership of the goods to the buyer. he can still recover damages for any defect in the performance.B. Shipment contract: the seller has a duty to ship the goods. but no duty to deliver them to a particular place. F.B. The seller must deliver to the carrier. and give the buyer notice that the goods have been shipped.O.O. the end result is similar to a situation where the substantial performance doctrine is applied.C. Thus.B. Strict Performance By Seller Under The U. it is a shipment contract. There are basically four methods of tender stated by the code. make a proper contract for their shipment. the correct one in a particular transaction depending upon the place of tender: • • Seller's place of business: the seller must place the goods at the disposition of the buyer and give the buyer notice.B. etc. and tender them there by holding the goods at the buyer's disposition and giving the buyer notice. If it is F.. . — can affect the seller's obligations. • • Mercantile terms — F. the seller must convey clear title to the goods. buyer's place of business or some point other than seller's place of business. Waiver The owner may "waive the breach" by accepting the performance of the builder knowing that the condition was not fulfilled. Where goods in hands of bailee: the seller must negotiate a negotiable document of title or obtain acknowledgment from the bailee of the buyer's rights in the goods. and (2) to tender goods conforming to the warranty obligations.C. 3. it is a destination contract. If it is F. Transfer of ownership Unless the contract provides otherwise. is the most common term.O. a. and the seller is obligated only to put the goods in the possession of the carrier. there is a breach of the warranty of title.O. Tender of the goods The seller must tender the goods in accordance with the contract if there are specific provisions on tender. b. she must tender them in accordance with the code provisions." If there is a waiver by the owner. seller's place of business or city. and the seller at her own expense and risk must transport the goods to the specified place. otherwise. otherwise. Waiver is defined as "a voluntary relinquishment of a known right.MicroMash MBE In Brief: Contracts 25 d.

the buyer is obligated to accept. and each shipment is to be separately accepted by the buyer. with a provision that the employee is to be paid at the end of each week. Thus. A contract for the construction of a building where the owner is to make progress payments when certain parts of the building are completed. the buyer may reject only if the nonconformity substantially impairs the value of that shipment to the buyer. Buyer's Obligations When a conforming tender is made.C. the strict performance rule does not apply. in an installment contract. 1) Defined An installment contract is defined as one in which the goods are to be delivered in a number of shipments. If he accepts. even though she does not perform the other segments. b. there is something like the substantial performance rule. Thus. is a divisible contract and the separate units are the individual weeks. At common law A divisible or installment contract is one in which the various units of performance are divisible into separate parts. Divisible Or Installment Contracts a. In other words.C. a contract for employment during a six-month period. not parts of a building. Of course. even if the buyer is forced to accept because the nonconformity does not substantially impair the value of the shipment. Installment contracts under the U.g. The theory is that the payments are simply to allow the builder to continue construction. If a contract is divisible. . If the buyer rejects. the doctrine of constructive conditions of exchange is applied to each part of the contract separately. unless the price cannot be apportioned. the buyer may recover damages for any loss resulting from the nonconformity. Typical divisible contracts are employment contracts for a set period of time with payment to be made periodically. e. an employee can recover the week's salary even though she quits at the end of the week. part of the consideration by one person is set against part of the consideration promised by the other. this amounts to performance of one of the buyer's obligations. 5. and if the nonconformity cannot be cured.. Hence. Payment by the buyer is due upon each delivery. rather. Damages are recoverable by the other party for breach of the other segments. he has breached the contract. a person can recover the amount promised for a segment of the contract. is not a divisible contract unless expressly made so. and that the owner wants a completed building.26 MicroMash MBE In Brief: Contracts 4. 2) Effect of breach as to that installment Where there is an installment contract and the seller makes a nonconforming tender or tenders nonconforming goods under one segment of the contract.

When the period of suspension has expired. ELECTION. an issue can arise concerning its scope. the buyer may call off the rest of the contract. he can postpone the time in which he must comply with the condition if it is suspended. The relinquishment can occur explicitly by language or implicitly by action. IMPLIED DUTIES OF GOOD FAITH AND FAIR DEALING A duty of good faith and fair dealing is implied into all contracts. only if the nonconformity substantially impairs the value of the entire contract to the buyer. then the party having the benefit of the condition can never raise it as a defense. the condition is reinstated.e.MicroMash MBE In Brief: Contracts 27 3) Effect of breach on rest of contract Where there is a nonconforming tender or a tender of nonconforming goods under one segment of an installment contract. He can possibly sue successfully despite the existence of the condition if he can show that it was waived. a waiver with respect to conditions on one installment is not a waiver for all future installments unless the language of the waiver clearly indicates that the waiver applies to future installments. After the period of postponement has elapsed. SUSPENSION OR EXCUSE OF CONDITIONS BY WAIVER. one party has the choice of alternative methods of performance from the other party. If the waiver is of a condition that is effective at one time only. D. 2. where necessary. On the other hand if the condition is excused. C. that the other party elected his rights in a way that terminated the condition. Election In some contracts. the condition is restored to its original effect. i. cancel the contract. or that the other party is estopped from raising the condition as a defense to suit. Waiver A waiver occurs when a party. A subspecies of this duty is a duty not to hinder the other party's performance and a duty to cooperate. 1.. OR ESTOPPEL Even though a party to a contract would be unable to sue successfully on the contract because he has not complied with an express or implied condition. If a waiver occurs. a contract could require a seller to deliver either red . If a condition is suspended. For example. the party having the benefit of the condition has only postponed the time in which he can interpose the noncompliance with the condition as a defense to the contract. If there is an installment or divisible contract. then the waiver is irrevocable and cannot be unilaterally reinstated even if no consideration is given for the waiver. In some cases the waiver is not a total relinquishment of the condition but only a postponement of it. having the benefit of a an express or implied condition which the other party must comply with in order to perform her obligations under a contract voluntarily and knowingly relinquishes that right.

will not be able to take a position inconsistent with her previous position. If the buyer makes an election for red widgets. and until they are provided.28 MicroMash MBE In Brief: Contracts widgets or blue widgets at the buyer's election that is to be communicated at a specific time. then stoppage is available even if the goods were sent in less than carload lots. If the contract were divisible. EFFECT ON OTHER PARTY Between the time a contract is made and the time for performance. each party should enjoy a reasonable expectation that performance will be forthcoming when due. and one party created an estoppel so that she could not enforce the condition with respect to one party of the contract. Reasonable reliance is an essential element of estoppel. If the buyer realized that the seller was under the impression that she could deliver at a later date. Seller's Remedies Under The U. Assurances must be in writing. and in general. . Stoppage In Transit A seller who has shipped goods to a buyer may stop the goods in transit if the buyer either becomes insolvent or breaches the contract. E. The law is less settled in the area of prospective inability to perform than it is in cases of anticipatory repudiation. if she by her actions creates an impression that she will not insist on a condition. PROSPECTIVE INABILITY TO PERFORM. the seller would not have the defense of estoppel. She has taken a position indicating that the condition will not be enforced and if estoppel applies. The seller can cancel credit terms or stop goods in transit if the buyer becomes insolvent before delivery of the goods. Such cases have generally been classified as examples of prospective inability to perform. otherwise. 3. Estoppel A party is estopped to insist upon satisfaction of a condition as a defense to performance by the other party. and the other party reasonably relies on that impression to her detriment.C. A common example of this is a credit sale when the buyer becomes insolvent prior to the time the goods are delivered. 2. there is a reluctance to excuse a party from performing solely on the ground that he does not expect counter-performance to be given. If the ground is insolvency.C. then the seller has performed his contractual obligation by delivering red widgets even though the seller later changes his mind and asks for blue widgets. Either party can demand assurance of performance if she has reasonable grounds for insecurity about the other party's ability or willingness to perform. only if shipped in carload lots. and called the seller to correct that impression before the seller reasonably relied on that impression. the other party may suspend performance. 1. A party's expectations of performance may be diminished by the occurrence of some event after the contract was made. she could insist on the condition in later portions of the contract if she insisted on the condition before the other party reasonably relied with respect to later portions of the contract.

The seller must strictly perform all obligations under the contract. Inspection can be at or in any reasonable time. or goods have been reshipped by carrier. The buyer has three basic remedies: (1) Damages: (market price minus contract price). the seller may do one of three things: nothing (breach by seller). except in installment contracts. place. If seller makes nonconforming tender If either the tender is nonconforming or the goods are nonconforming. a. VIII. The buyer must tender the rest of the price. The buyer has the right to inspect the goods before deciding whether to accept or reject. (2) Cover: Purchase similar goods elsewhere and sue for cover price minus contract price. For Breach Of Contract By The Seller When the seller's time for performance arises. there is a breach by the seller. There is no doctrine of substantial performance.C.C. or carrier or warehouseman has acknowledged buyer's rights. If seller makes no tender If the seller does not tender the goods when the time for performance arises. . the buyer has the right to reject all. make a conforming tender (performance by seller). TOTAL AND PARTIAL BREACH OF CONTRACT 1. b. REMEDIES A. The buyer also can obtain incidental and consequential damages where damages or the cover remedy is sought. accept all. or reject some and accept some. make a nonconforming tender (breach by seller). (3) Specific Performance: Unique goods. and manner. Buyer's Remedies Under The U. or a negotiable document of title has been given or negotiated to the buyer. The buyer can obtain the goods from the seller if partial payment has been made and the seller becomes insolvent within ten days of payment.MicroMash MBE In Brief: Contracts 29 The right to stop in transit terminates where: • • • • buyer has received the goods. or (4) Replevin: Identified goods where similar goods are unavailable in the marketplace.

C. or sell them for the seller's account. If the seller has no local agent at the place of rejection (usually the city in which the buyer is located). or (3) the buyer fails to reject. or (2) the defect was hidden. then the measure of damages is the value the goods would have had if as warranted. 2) Acceptance Acceptance occurs when: (1) the buyer says she is accepting. then the buyer may recover all losses resulting in the ordinary course of events. it is just as though he had made proper a tender in the first place. If the nonconformity is in the goods (breach of warranty). and (2) the buyer may store non-perishable goods at the seller's expense. If the buyer rejects. If the seller cures. delivered late). Seller's right to price upon acceptance If the buyer has accepted the goods. For Breach by Buyer a. if (1) she accepted with a reasonable expectation that the seller would cure and the seller did not. or the seller had reasonable grounds to believe the buyer would accept despite the nonconformity. The buyer can revoke acceptance (thus putting herself in the same position as if she had rejected). If the buyer accepts a nonconforming tender. 2. 3) Right to cure The seller has a right to cure a defective tender if: • • there is still time to perform under the contract. reship them to the seller. Incidental and consequential damages can also be recovered. he must hold them for a reasonable time to allow the seller to remove them. and (3) specific performance or replevin.30 MicroMash MBE In Brief: Contracts 1) Rejection Rejection requires the buyer to give the seller notice that he is rejecting. (2) the buyer uses the goods. minus the actual value with the defect. The seller's remedy when the buyer refuses to pay the price is to sue for the price. the buyer's obligations depend upon whether the goods are perishable.g.C. If the breach was in the tender obligation (e. Seller's Remedies Under The U. In the absence of other instructions from the seller. the seller has a right to the price. provided notice of the defect is given within a reasonable time. (1) the buyer must sell perishable goods for the account of the seller. the buyer has the same basic remedies as if no tender was made by the seller: (1) damages.. the buyer can still recover for any damages resulting from the defect. If the buyer has possession of the goods at the time of rejection. (2) cover and cover damages. .

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The amount is generally set by contract, but if not, the buyer must pay a reasonable price. The parties can postpone agreement about the price when they enter the contract. Payment by check is permitted unless the seller demands cash. If the seller demands cash, the buyer is entitled to a reasonable time to obtain it. The price is due after the goods are physically delivered to the buyer and the buyer has an opportunity to inspect, unless the contract provides otherwise. The buyer has no right to inspect before paying in the following cases: • • • C.O.D. contract; C.I.F. or C.& F. contract; payment is against documents.

Of course, payment does not constitute "acceptance" if there is no right of inspection before payment. b. Seller's right to reclaim goods If the buyer was insolvent when the goods were delivered and the price is not paid, the seller can recover the goods if demand is made in ten (10) days, provided no good-faith subpurchaser has bought the goods from the buyer. In a C.O.D. sale, if the buyer has given a worthless check, the seller can reclaim the goods. c. Seller's remedies upon wrongful rejection If the buyer wrongfully rejects, the seller has three basic remedies: damages, resale, or recovery of the price. The seller may also recover incidental damages along with contract damages or resale. d. Damages for wrongful rejection The measure of damages is generally contract price minus market price. However, if Contract Price minus Market Price does not fully compensate the seller, she can sue for lost profits as an alternate measure of damages. In either case the seller is entitled to incidental damages and the buyer must be credited with any partial payments and with expenses saved by the seller (e.g., by the seller's resale of the goods). e. Resale If the seller elects to resell and sue for contract price minus resale price, the resale must be: • • only of goods identified to the contract, and commercially reasonable.

f. Price

The seller can recover the price after rejection only if the goods are not salable in the
seller's ordinary course of business.

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The seller can retain deposits paid by the buyer up to the amount stated in a liquidated-damages clause, or, in the absence of such a provision, (2) 20% of the value of performance, or $500, whichever is less.

B. ANTICIPATORY BREACH
1. At Common Law a. Repudiation of promise The doctrine of anticipatory breach is applicable when a promisor, before the time for performance arises, repudiates his promise. A repudiation must be "clear and unequivocal." It may be by acts instead of words. The bankruptcy of the promisor, prior to performance, has been held a repudiation. However, a good-faith denial of an obligation under the contract is not a repudiation. b. Promisee's options When a promisor repudiates, the promisee has the option of ignoring the repudiation and demanding that the promisor perform at the agreed upon time, or treating the repudiation as a breach of the contract. If treated as a breach, the promisee may cancel the contract, sue for damages or, if appropriate, seek specific performance. If the promisee ignores the repudiation, he cannot continue to perform under the contract if this will increase the damages of the promisor. The repudiation relieves the promisee of any obligations under the contract. However, he must be able to prove that he would have been "ready, willing, and able" to perform but for the repudiation. c. Retraction of repudiation A repudiation may be retracted until the promisee: (a) acts in reliance on the repudiation; (b) signifies her acceptance of the repudiation; or (c) commences an action for breach of contract. Notice of the retraction sufficient to allow the promisee to perform her contractual obligations must be given. d. Unilateral contracts The doctrine of anticipatory repudiation does not apply to unilateral contracts and may not be used if the promisee has completed performance prior to the repudiation. 2. Anticipatory Repudiation Under The Uniform Commercial Code Anticipatory repudiation occurs when there has been an unequivocal refusal of the buyer or seller to perform, or when a party creating reasonable grounds for insecurity fails to provide adequate assurances within 30 days of demand for assurances. The repudiation can be retracted if the other party has not canceled the contract or materially changed position. Repudiation allows the nonrepudiating party to resort to any remedy given by the contract or code.

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C. ELECTION OF SUBSTANTIVE RIGHTS AND REMEDIES When the defendant induces the plaintiff to enter into a contract by fraud, or when the defendant materially breaches the contract, the plaintiff has three types of remedies available to him. • In limited instances he can require that the defendant perform the contract by obtaining a decree for specific performance.

• He can seek damages for breach of contract. • He can rescind the contract and recover what he put into performing the contract. The issues are when he can pursue more than one of these remedies, and when the election to pursue one remedy bars him from changing his mind and pursuing another, and what action is considered an election.
1. Multiple Recoveries Not Permitted

One principle that is clear is that the plaintiff cannot pursue multiple remedies in order to obtain a double recovery. For example the plaintiff could not obtain a decree for specific performance of a land contract and at the same time obtain expectancy damages for breach of the contract to convey. On the other hand, she would be able to obtain specific performance some incidental damages, related to her equitable remedy. In a lawsuit for breach of contract, a plaintiff under the Federal Rules of Civil Procedure and similar state procedural rules can bring a lawsuit asking for inconsistent remedies such as specific performance and damages, but at the successful conclusion of the lawsuit, she will only obtain a judgment for one remedy. If her preferred remedy is specific performance, but the court in its discretion refuses to order the contract performed, it can order the damage remedy in the alternative.
2. When Does Election Occur

The most common situation involving election involves the choice between damages, where the plaintiff affirms the existence of the contract and seeks monetary compensation for the difference between the performance he bargained for and that which he received, and rescission where the plaintiff seeks to restore the status quo which existed before the contract was formed. It is clear that if one of these alternative remedies is pursued to judgment, the plaintiff cannot change his mind and pursue the other. The procedural rules of res judicata would bar such action. Likewise, if the plaintiff communicates to the defendant that he is seeking one of these alternative remedies and the defendant relies on that representation, the principals of estoppel will prevent the plaintiff from abandoning one remedy and seeking the other. Some courts have found an election at a much earlier stage, and prohibited the plaintiff from changing his mind and seeking a different remedy once he has communicated his choice of remedy to the defendant, even if the defendant has not relied upon that decision.

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A plaintiff may also be denied the remedy of rescission if he has knowledge of the basis for seeking rescission and fails to pursue that remedy for a period of time during which the defendant changes his position. The plaintiff in this case would still be entitled to the damages remedy, as long as the statute of limitations has not expired. 3. Election Of Remedies Under The Uniform Commercial Code Comment to U.C.C. Section 2-703 dealing with seller's remedies provides that the article rejects any doctrine of election of remedy as a fundamental policy and thus the remedies are essentially cumulative in nature and include all of the available remedies for breach. Whether the pursuit of one remedy bars another depends entirely on the facts of the individual cases. In dealing with buyer's remedies §2-711 of the code provides that the buyer may cancel and whether or not she has done so may in addition to recover so much of the price as has been paid, obtain damages based upon cover or otherwise.

D. SPECIFIC PERFORMANCE, INJUNCTION AGAINST BREACH, DECLARATORY JUDGMENT
1. In General When damages are an inadequate remedy, equity will order specific performance of the contract. If the equity decree is not observed, the breaching party is in contempt and may be fined or imprisoned. 2. Factors Considered In determining whether damages are adequate, the following factors should be taken into consideration: • the difficulty of proving damages with reasonable certainty (e.g., the difficulty may be posed by sentimental associations and aesthetic interests, not measurable in money, which would be affected by breach); the difficulty of procuring a suitable substitute performance by means of money awarded as damages; and the likelihood that an award of damages could not be collected.

• •

3. Real Property Because every parcel of real property is considered unique, contracts involving the transfer of an interest in real property may be enforced by an order of specific performance. 4. Limitations On Court's Powers To Order Specific Performance Even if the remedy of damages is inadequate, specific performance will not be granted where the court cannot supervise enforcement. Thus, courts do not grant specific enforcement of contracts for personal services, although they may restrain the breaching party from working for another. For example, if a performer agrees to sing in a particular theater, the court will not grant a decree ordering the person to sing at that theater, but it

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will grant a decree restraining the performer from appearing at competing theaters. Lumley v. Wagner, 42 Eng. Rep. 687 (1852). Also, courts will usually refuse to grant specific performance in an action where the act or forbearance will occur outside the jurisdiction of the court. Thus, if A agrees to sell land to B, and both A and the land are located outside the jurisdiction of the court, the court will usually not grant a decree of specific performance upon A's refusal to deed the land. Since a decree of specific performance is an equitable remedy, the usual rules for seeking equitable relief apply, e.g., the clean hands doctrine. Whether the court will grant the relief requested is always within the discretion of the court.

5. Specific Performance Under The U.C.C.
In sale of goods cases, §2-716 of the Uniform Commercial Code provides that specific performance may be granted where the goods are unique or in other proper circumstances, such as for breach of a requirements contract where there is not another convenient supplier.

6. Declaratory Judgment
If the rights and obligations of the parties under a contract are unclear, and an actual dispute exists between the parties concerning those rights and obligations, either party may bring a declaratory judgment action to obtain an adjudication of those rights and duties. It is not available, however, to resolve moot issues or theoretical problems which have not risen to an actual dispute. For example, this form of litigation can be brought even before a breach of contract, to adjudicate whether a specific proposed action by one party would constitute a breach. If the court found that a specific action constituted a breach and a party pursued that course of action, the principles of collateral estoppel would constitute an adjudication of breach which could not be relitigated at a subsequent action for damages. Thus a declaratory judgment action is often an effective, indirect way of enforcing a contract prior to a breach.

E. RESCISSION AND REFORMATION 1. Rescission
The non-defaulting party to a contract can choose the rescission remedy, which cancels the contract, and requires a return of any deposits or other benefit conferred on the other party. The rescission remedy is advantageous to the nonbreaching party when he has made a disadvantageous contract, and will be better off if he can completely undo the contract. For example, if homeowner hires contractor to paint his house for two thousand dollars, and gives contractor a five hundred dollar contract, and contractor defaults on the contract by not starting to paint the house in a timely way, homeowner can rescind the contract and get his five hundred dollars back, and then make a more advantageous agreement with another painter to paint his house for fifteen hundred dollars. Rescission can also occur by the mutual agreement of the parties.

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2. Reformation When reformation of the contract is available to cure a mistake, neither party can avoid the contract. For example, assume that A agrees to sell Redacre to B, with B agreeing to pay $50,000 and to "assume a mortgage in the amount of $100,000." If the parties fail to include a provision regarding the assumption of the $100,000 mortgage, A can obtain reformation of the agreement to reflect B's promise. A has no right to avoid the contract because reformation adequately remedies the mistake in drafting the written agreement. F. MEASURE OF DAMAGES IN MAJOR TYPES OF CONTRACT AND BREACH The primary objective of contract damages is to put the nonbreaching party in the same position that she would have been in had the contract been performed. Thus, it is sometimes said that the plaintiff in a contract action is entitled to the "benefit of her bargain" or her "expectancy damages." Although "expectancy damages" are the normal means of determining damages in a contract case, two alternative types of damages are recognized: "restitution damages" and "reliance damages." In both of these the plaintiff is not to be put in the position that she would have been in had the contract been performed, but rather to be put in the position she was in at the time the contract was made. In addition, a plaintiff may have suffered damages that go beyond loss of the benefit of her bargain. These are classified as "consequential damages." 1. Expectancy Damages a. In general Expectancy damages are normally measured by a formula that looks at the value of the performance of the breaching party and the consideration promised for that performance. The general formula is the market value of the promised performance less the consideration promised by the nonbreaching party. For example, assume a contract were for the painting of Homeowner's house which was breached by Painter. The damages would be Homeowner's cost to hire a new painter less the original contract price. Thus, if the original contract price was $2500 and Homeowner, after Painter's breach, hired Brush to paint the house for $3000, Homeowner's damages would be $500. This $500 damages from Painter puts Homeowner in the position he would have been in had the contract been performed — he has his home painted for a net cost of $2500. Conversely, assume that that Homeowner had breached in the example above, and Painter's cost of painting the house was $2000, Painter would be able to collect $500 in damages. Even if no second contract is entered into by which to measure damages, the same basic formula exists: In contracts for services; compare the difference between the value of the services to be performed under the contract with the price that was promised for those services.

CAUSATION. However. the plaintiff is still entitled to a judgment for "nominal" damages: usually six cents or $1. because the defendant's breach was not a "but for" cause of the plaintiffs damage. having thus far incurred $4.000 representing the cost of performance and $1. Contractor could recover the $4. This issue can be simply illustrated where the plaintiff seeks to recover damages from a components supplier who delivered late. for a total of $5. because that supplier knew that the plaintiff would be penalized if she delivered the final product beyond a specified date. G. If the plaintiff is seeking damages. For example. She could not recover the remaining $4.500 and the $1. CONSEQUENTIAL DAMAGES. .000 representing the contractor's profit.MicroMash MBE In Brief: Contracts 37 b. If no damages are alleged or none are proved.000. Partial performance If one of the parties has partially performed at the time of the breach of the other party. which represents the costs not incurred by not yet finishing the contract. Nominal Damages Damages are not an essential element in a cause of action for breach of contract. 2. the failure to construct the building may cause additional damages to the owner in the way of lost profits because of delay.000 in anticipated profit. the performing party can recover for work done at the contract rate plus "expectancy damages" for the work not yet performed. the plaintiff could not recover for delay from the defendant.500. Consequential Damages A breach of contract may result in damages to the nonbreaching party that go beyond the difference between the value of the nonbreaching party's performance and what the nonbreaching party would have received had there been no breach. or by causing him to breach contracts he may have made with third parties for the use of the building. with $9.500. If such damages can be proven by the plaintiff and were foreseeable by the breaching party at the time of the contract. consequential damages are recoverable. the basic measure of damages would be the difference between the contract price and the amount that it cost the owner to have someone else construct the building. Thus. AND FORESEEABILITY 1. the defendant can defend on the ground that the losses that the defendant seeks to recover would have occurred whether or not the defendant breached her contract.500 in costs. If 0 breaches when Contractor is half finished. if a contract calls for the construction of a motel and the builder fails to perform. assume a contractor agreed to paint O's house for $10. but at the time they should have been delivered the plaintiffs employees were on strike so that the final product could not have been delivered on time even if the parts were delivered on time. 2. If the defendant delivered the parts late. CERTAINTY. Causation Contract law has a doctrine similar to the requirement of "but for" causation in tort law.

which involved an action by the owner of a factory against a carrier. 4. Baxendale.38 MicroMash MBE In Brief: Contracts 3. i. A contracts to allow B to operate his established coal mine and to pay B $25 per ton for coal produced. The court held that the damages recoverable in a contract action are those which "may fairly and reasonably be considered either arising naturally.e." This does not mean that the plaintiff can recover nothing if part of the damages he attempts to prove fails to meet the requirement of certainty. too speculative. The Restatement gives the following examples." or if they were "in the contemplation of the . among others. from such breach of contract itself. as the probable result of the breach of it. in the eyes of most courts.. Foreseeability And The Rule Of Hadley v. The owner had contracted to have a shaft needed to run machinery in the factory transported to a third party. B dissolves the partnership prior to the time specified. a plaintiff must prove the dollar amount of the damages with reasonable certainty. although others may not be allowed. or such as may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made. B can recover damages by showing the cost of producing the coal. If the mine has been operating for an extended period of time and the veins are well established. if a plaintiff is suing to recover lost profits because of the defendant's failure to deliver a boiler necessary for plaintiff's new factory. The Restatement (Second) of Contracts §352 requires that the evidence of the amount of damage must afford "a sufficient basis for estimating their amount with reasonable certainty. a court may award the plaintiff the rental value of his factory during the time it was inoperative. A could recover damages for lost profits by proving what the profits were during the life of the partnership." Thus. 9 Exch. the rule under Hadley v. Baxendale The leading case on consequential damages is Hadley v. This is particularly true in a new or relatively young enterprise. 341 (1854). and the plaintiff asked damages to compensate for the loss resulting from the stoppage of work in the factory during the delay. The shipment was delayed by the defendant-carrier. according to the usual course of things. the amount that could have been produced during the contract period. • Courts are hesitant to award damages for lost profits because they are. Baxendale is that damages are recoverable if they were the "natural and probable consequences. and the market price at which it could have been sold. those damages that were proved with sufficient certainty can be recovered. Certainty In order to recover damages. who was to use it as a model for the manufacture of a new one. To put this in the negative: the damages must not be too speculative. but will not grant an award on the presumption that the new enterprise would have made a profit. of the application of this rule: • A and B contract to form a partnership and to continue it for a specified period. A breaches the contract by refusing B entry to the land. For example.

000. A provision for liquidated damages will be enforced. B cannot recover for damages resulting from the fact that no crops were planted.000 in having his house painted. AVOIDABLE CONSEQUENCES A party to a contract has the obligation of avoiding or mitigating damages to the extent possible by taking such steps as do not involve undue risk. and not construed as a penalty. I. or inconvenience. The nonbreaching party is held to a standard of reasonable conduct in preventing loss. however. assume Painter enters into a contract with Homeowner to paint Homeowner's house for $5. Therefore. If Painter abandons the job after the home is 60% painted. a party may not be "penalized" for her breach of contract. LIQUIDATED DAMAGES AND PENALTIES Parties to a contract may fix the amount of damages that will be recoverable in the event of breach.000. expense. Painter has conferred a benefit upon Homeowner for the fair value of his work in painting the house and can sue in quantum meruit for the fair value of the benefit conferred. and only expended $4. penalty clauses in a contract are unenforceable. 2. They may be combined with expectancy damages.000 by July 1 payment to be made upon completion of the job. if Homeowner hires Brush who completes the work for $4." H." In other words. J. or the damages that might be anticipated at the time the contract was made. For example: A contracts to manage B's farm for a year. the damages must be "foreseeable.000 to have Brush complete the job. if the amount of damages stipulated in the contract is reasonable in relation to either the actual damages suffered. Unlike restitutionary damages. However. 60% of the contract price. A quits. and which she could have avoided by the expenditure of reasonable effort. K. Thus. REMEDIAL RIGHTS OF DEFAULTING PARTIES A party who commits a material breach of his contract obligations cannot sue for contract damages.000 because Homeowner placed a value of $5. Reliance Damages Reliance damages may be recovered where the nonbreaching party has incurred expenses in reasonable reliance upon the defendant's performing her contractual obligations. he may not collect $3. In this case the court would probably find that the benefit conferred was $1. If B could have found another manager by the exercise of reasonable effort. Restitutionary Damages Restitutionary damages restore to the plaintiff whatever benefit he has conferred upon the defendant prior to breach. the plaintiff in a contract action cannot recover damages which were foreseeable by her. . RESTITUTION AND RELIANCE RECOVERIES 1.MicroMash MBE In Brief: Contracts 39 parties at the time the contract was made. Several weeks before the planting season. there is no requirement that the defendant have benefited from the plaintiffs expenditures. Restitutionary damages may be recovered even though the plaintiff would have suffered a loss had the defendant not breached. For example.

if there is a "shipment contract. the seller's insurable interest ceases unless the seller retains a security interest in the goods. Special rules There are three "special" rules regarding risk of loss.40 MicroMash MBE In Brief: Contracts L. Risk Of Loss a. Remember that a seller does not automatically get a security interest. b. the risk of loss remains on the seller until the buyer accepts or there is a cure. at that time. the seller retains an insurable interest as long as he or she has title to the goods or has a security interest in them. and if the goods are destroyed or lost while they are in transit. a determination must be made as to who must initially suffer this loss. Buyer's insurable interest The code provides that the buyer obtains an insurable interest in the goods as soon as the goods are "identified to the contract. Insurable Interest a. General rules Where the goods are lost or destroyed through no fault of the seller or the buyer." the seller completes the delivery obligations by tendering the goods to the carrier. There must be a voluntary granting of a security interest by the buyer to the seller in accordance with the provisions of Article 9 of the code. The basic rule is that the risk of loss is on the seller until he or she completes his or her delivery obligations under the contract. the risk of loss is on the buyer and the buyer must pay the contract price. the risk of loss shifts back to the seller to the extent of any lack of insurance coverage by the buyer. Thus. all of which deal with situations where one of the parties is in breach: • • • Where the seller delivers nonconforming goods. and making a proper contract for their shipment. the title passes from the seller to the buyer when the seller completes his or her delivery obligations. 2. Under Article 2. even though the buyer is to pay sometime in the future. Where the buyer rightfully revokes his or her acceptance. he or she must have an "insurable interest" in the goods. At that time. Absent a contrary provision in the contract. there is a shifting of the risk of loss from the seller to the buyer. the risk of loss is immediately shifted to the buyer to the extent of any lack of insurance coverage on the part of the seller. b. Where the buyer repudiates or breaches after the goods have been identified to the contract but before the risk of loss has shifted to him." . Thus. UNIFORM COMMERCIAL CODE ISSUES 1. Seller's insurable interest In order for a person to insure goods.

where there is a lease or sale of specific goods and they are destroyed. a party is excused from performing the contract. and the person who is to provide the services dies or becomes incapacitated. This excuse exists when: • goods identified at the time of contracting are destroyed.g. A buyer in ordinary course is one who in good faith and without knowledge of a third party's ownership rights or security interest. IX. Entrusting provisions The code provides that delivery of goods by the owner to one who sells goods of that kind gives to the transferee the power to convey good title to a buyer in ordinary course. If the parties desire. Title And Good-Faith Purchasers a. 3. The typical situations are: • • • where the performance becomes illegal after the contract is made. become liable to pay damages even if performance becomes impossible. but the sale is voidable because of fraud or because it was a cash sale and the buyer has not paid or has paid with a dishonored check. a person cannot require that the other party accept substitute performance. the code takes the position that the buyer has the power to transfer good title to a good-faith purchaser. if the jeweler sells the watch to a buyer in ordinary course. Also.MicroMash MBE In Brief: Contracts 41 c. Overlapping insurable interests It is possible for both the seller and the buyer to have insurable interests at the same time under the provisions of Article 2 of the code. This is true even though the fraud may be punishable as larceny under the local law. one or the other can assume a greater risk in their contract. where there is a personal services contract. IMPRACTICABILITY OF PERFORMANCE 1. . Thus. Voidable title Where the true owner of goods sells them to another. b. When impossibility of performance arises. IMPOSSIBILITY Impossibility of performance arises when the performance of one of the parties becomes impossible. It is essential that the event giving rise to the impossibility be unforeseeable at the time the contract was made. buys from someone selling goods of that kind. IMPOSSIBILITY OF PERFORMANCE A. if I give my watch to a jeweler to have it repaired and the jeweler also sells used watches. B. the buyer would get good title even against me. Total Impracticability Impracticability of performance provides an excuse (defense) for nonperformance of the contract similar to impossibility in contract law. e. a liquidated damages clause can be made to apply to impossibility situations by specific agreement of the parties.. However.

however. such as a renunciation of rights or a release. The parties may also modify their duties by means of a mutual agreement of rescission. American courts very rarely find the doctrine applicable. Discharge may occur pursuant to the terms of the contract by nonoccurrence of a condition precedent to performance or by occurrence of an event of discharge. A duty may be discharged by impossibility or frustration of purpose. If the doctrine applies. generally must be supported by consideration. X." The excuse applies only when the event was not foreseeable and when nonoccurrence of the event was a basic assumption of the contract. the event destroying the value of a contract must have been unforeseeable. into a judgment. may refuse to accept and may cancel the contract. A duty may be discharged by merger into an award in arbitration. Partial Impracticability When impracticability affects only part of the seller's ability to perform. Unilateral forms of discharge. The most common exception today is that a renunciation or release contained in a signed and delivered writing will be effective under the Uniform Commercial Code without consideration. . or into a substituted contract or novation. Again. FRUSTRATION OF PURPOSE The doctrine of frustration of purpose applies when the value of the contract is totally or almost totally destroyed for one of the parties. DISCHARGE A party's duties under the contract may be discharged by full performance or without full performance by operation of law or by act of the parties. C. the goods actually produced must be apportioned among all the buyers with whom the seller has contracted. Discharge by operation of law occurs when enforcement of the obligor's duty is discharged in bankruptcy or by the running of the statute of limitations. However. When the agreed method of transportation or payment becomes impracticable: • • the performing party must use a commercially reasonable substitute if available. and the substitute performance must be accepted. the party is excused from performing the contract.42 MicroMash MBE In Brief: Contracts • • performance becomes illegal. or performance has been made "impracticable. The buyer. an accord and satisfaction. 2. or an account stated.

acceptance of part can be considered a rejection of the remainder. 2. FORMATION OF CONTRACTS A. MUTUAL ASSENT 1. ■ Unless the offeror specifically states that her offer may be accepted by silence or the course of dealings between the parties indicates that the offer will be accepted if the offeree does nothing. ■ If the offeror has made an offer that she permits to be accepted in part. even if the time for expiration of the offer has not yet occurred. an offer can only be accepted by the offeree agreeing. before the offer is revoked. OFFERS ■ A communication is an offer for a bilateral contract if it sets forth a proposed exchange of promises in such a manner that the person to whom it is directed reasonably believes that she can enter into a binding contract by accepting those terms. ACCEPTANCE ■ At common law. REJECTION ■ If the offeree rejects an offer or makes a counteroffer. . 3. ■ The person selling goods at auction is not bound by the highest bid unless she advertises the auction as "without reserve. silence will not operate as an acceptance. ■ An inquiry in response to an offer ("Would you consider a lesser price?") is not a rejection." in which case placing the goods at auction is making an offer to the highest bidder. to all of its terms in the time and manner specified by the offeror (or in a reasonable time and in a reasonable manner. if the offeror did not specify the manner of acceptance). the original offer is terminated and cannot thereafter be accepted.MicroMash ® BAR REVIEW BAR EXAM ALERTS AT A GLANCE - CONTRACTS I.

and able to buy at the listing price. ■ An offer for a contract that would fall within the Statute of Frauds can be revoked orally. i. MISTAKE. started substantial performance.C. it is revoked. if the offeree has given consideration to the offeror in exchange for the offeror's agreement to keep the offer open. with the knowledge of the offeror. and cannot remain irrevocable for more than three months. transaction. a "firm offer" cannot be revoked before the expiration date. ■ If the offeror dies before the offer is accepted. then death does not terminate the obligations of the contract. ■ An offer is revoked if the notice of revocation is communicated to the offeree in any manner before the offer is accepted. an offer is irrevocable for the time specified only if an option contract is formed. Such a "firm offer" can only be made by a merchant. AND DURESS ■ A contract can be avoided on the grounds of unilateral mistake if the mistake was so obvious that the offeree should have known of the mistake at the time he accepted the offer.C. At common law. ■ In a real estate brokerage transaction where the owner makes an offer for a unilateral contract that the broker accepts by producing a buyer ready.. ■ An offer for a unilateral contract is irrevocable by the offeror if the offeree has. However. ■ Under the U. the offer is automatically revoked by the seller's acceptance of an offer to purchase the property from a buyer not produced by the broker. ■ A party has the right to rescind a contract if it was entered into in reliance on an untrue material fact.2 MicroMash MBE In Brief: Contracts Bar Exam Alerts 4.C. REVOCATION OF OFFERS ■ At common law.. INDEFINITENESS AND ABSENCE OF TERMS ■ If the price term is missing in a U. The notice of revocation can be any communication that fairly indicates to the offeree that the offeror has withdrawn the offer. 5. then there is no contract.e. 6. . an offer is generally revocable even if the offer says it will remain open for a specified time. if the offer is accepted. FRAUD.C. there is a contract at a reasonable price. ■ If each of the parties innocently has a different understanding of the meaning of the words of the agreement. willing. must state in writing that the offer is irrevocable until a date certain.

she is unconscious at the time medical services are rendered).. ■ Under the U. B.." does not amount to a contract supported by consideration.. within a reasonable time of reaching the age of majority. ■ A gift contingent on a minor condition that is not bargained for by the donor. ■ If necessary services are rendered to a person at a time when she lacks the mental capacity to request such services. even though it does not directly benefit her. the different or additional terms become part of the contract if they do not materially alter the offer and the offeror does not object. (e.g. CONSIDERATION A. BARGAIN AND EXCHANGE ■ The concept of bargain is the essence of consideration. but one party has conferred a benefit on the other not intended to be gratuitous. ■ A party does not have the right to sue in quantum meruit for a benefit conferred if there is an enforceable right to sue under a contract. C.C. there is an implied-in-fact contract to pay for the reasonable value of those services. a valid contract is formed if the offeree accepts the offer. BATTLE OF THE FORMS ■ Under the U. even if she proposes different or additional terms.C. a seller can accept an offer either by a promise to sell the goods requested by the buyer or by shipping conforming goods in accordance with the offer.C. even one that has been completed. ■ A quasi contract exists when there is no enforceable contractual relationship between the parties.C. II.MicroMash MBE In Brief: Contracts Bar Exam Alerts 3 7. IMPLIED IN FACT CONTRACTS AND QUASI CONTRACTS - ■ If a person accepts services from someone in the business of providing those services. CAPACITY TO CONTRACT ■ A minor can disaffirm a contract. . Between merchants. there is valid bargained-for consideration. The party conferring the benefit is entitled to collect the fair value of the services rendered. and promises something in return. If a party asks for something that she wants. there is an implied-in-law contract to pay for them. such as "I will give you a birthday present if you come down and pick it up.

MORAL OBLIGATIONS AND DETRIMENTAL RELIANCE ■ One party's promise to make a gift is enforceable under the doctrine of promissory estoppel if (1) the donor-promisor knows that the promise will induce substantial reliance on the part of the promisee. uncompleted) contract. and (2) failure to enforce the promise will cause substantial hardship. ADEQUACY OF CONSIDERATION ■ The value of what a party promises or requests is irrelevant for purposes of determining if there is valid consideration. MODIFICATION OF CONTRACTS. consideration is found in the mutual agreements to give up rights under the contract. .C. C. consideration is not required to support a modification. ■ A promise in writing to pay a debt that is barred by the statute of limitations is enforceable according to its terms without new consideration. THIRD-PARTY BENEFICIARY CONTRACTS A. there is consideration. contract. • If each side to an existing contract modifies its rights and obligations in exchange for modification of the rights of the party(ies) on the other side. D.4 MicroMash MBE In Brief: Contracts Bar Exam Alerts B. he is entitled to enforce the contract according to its terms. In a U. contract. INTENDED BENEFICIARIES ■ Intended beneficiaries are those persons who have a right to sue on a third-party beneficiary contract because the original contracting parties either explicitly or implicitly intended to benefit them. ■ If a party to a contract performs the promise he makes..C. PRE EXISTING DUTY RULE - ■ In a non-U.e. is not valid consideration.C.C. III. ■ If the parties agree to rescind an executory (i. ■ The agreement to perform an act that a person is already legally obligated to perform is not valid consideration. even if he is getting far more than he has given. • A service that has already been gratuitously rendered is not valid consideration for a later promise to pay for that service. ■ An illusory promise. consideration is required to support a modification. one that gives the party the unilateral right to do anything they want.

C. MODIFICATION OF THIRD PARTY BENFICIARY'S RIGHTS - • The promisor and promisee of a third-party beneficiary contract can modify their contract to the detriment of the intended beneficiary only until the beneficiary either assents to the contract at a party's request. ASSIGNMENT AND DELEGATION A. • A contract is also not delegable if the contract specifically prohibits it. or changes his position in reliance on it. ■ The third party need not provide consideration to be able to sue on a third-party beneficiary contract. INCIDENTAL BENEFICIARIES ■ An incidental beneficiary. has no right to enforce a third-party beneficiary contract. ■ If a party to a contract is notified of the assignment of rights under that contract. B. IV. B. a person that the original contracting parties did not intend to benefit. ASSIGNMENT OF RIGHTS ■ The benefits of a U. ■ The promisor of a third-party beneficiary contract has a valid defense in a suit by the intended beneficiary if the promisee fails to perform his obligations to the promisor. the contracting party cannot raise against the assignee rights against the assignor which accrue after notice of the assignment. contract are assignable even if the contract prohibits assignment.C.MicroMash MBE In Brief: Contracts Bar Exam Alerts 5 • If the third-party beneficiary contract is designed to satisfy an obligation of the promisee to the third party. . ■ An assignee takes rights under the contract subject to any defenses that the contracting party has against the assignor. DELEGATION OF DUTIES • A contract is not delegable if the party wishing to delegate possesses unique characteristics such that the performance rendered by a delegatee would vary materially from that bargained for. • The benefits of a contract can be assigned without the assignee becoming bound to perform the obligations of the contract. sues on the contract.C. the third-party beneficiary does not give up his rights against the promisee until such time as the promisor renders performance to the third-party beneficiary.

rather than those of the debtor. ■ A real estate brokerage contract is not within the Statute of Frauds. which would be the natural termination of the contract. V. if a person agrees to pay the debt of another for the primary purpose of furthering his own goals. ■ The Statute of Frauds with respect to the sale of goods is satisfied in a contract between merchants where one merchant sends a written. unless they are specially manufactured goods and not suitable for sale to others in the ordinary course of business. signed memorandum of the transaction sufficient to bind him to the contract and the receiving merchant does not object within 10 days. SALE OF GOODS ■ Contracts for the sale of goods for $500 or more must satisfy the Statute of Frauds. measure from the time of the making of the contract to the time prescribed for the end of performance. D. . not just the time when performance will take place. However.6 MicroMash MBE In Brief: Contracts Bar Exam Alerts ■ The party delegating duties (the delegator) remains liable on the contract as a surety for the performance of the delegatee. SURETYSHIP ■ An oral promise to pay the debt of another is usually unenforceable because of the Statute of Frauds. the memorandum required to satisfy the Statute of Frauds must contain the price. ■ The Statute of Frauds is satisfied to the extent that there is part performance. CONTRACTS THAT CANNOT BE PERFORMED WITHIN ONE YEAR ■ In determining if a contract can be performed within one year. B. C. the Statute of Frauds will not prevent enforcement of the promise. • A contract for life is not within the Statute of Frauds because death could occur within a year. LAND INTEREST • In a contract for the sale of land. the party now principally liable on the contract. ■ A personal services contract for more than a year is within the Statute of Frauds despite the fact that the contract would be prematurely terminated if the personal service supplier died within the year. STATUTE OF FRAUDS A. ■ The Statute of Frauds with respect to the sale of goods does not apply where the goods have been received and accepted.

. VII.C. in which case the performance must be subjectively satisfactory to the purchaser (limited only by the purchaser's obligation to exercise good faith). contract. ■ Parol evidence is admissible to show that the parties used words in a nontraditional manner or spoke in code. and is signed. thereby excusing its performance.C. a provision that requires subsequent modifications be in writing In a non-U.C. evidence of an oral modification subsequent to the making of a written contract is admissible.MicroMash MBE In Brief: Contracts Bar Exam Alerts 7 ■ In a U. VI. requires compliance with the Statute of Frauds. ■ A modification of a U. it contains a description of the goods and the quantity.C.C. ■ If a contract contains a condition that performance must be satisfactory to the purchaser. ■ In a U. modifications be in writing is invalid. Parol evidence is admissible to explain an ambiguity. B.C.C. Such mutual conditions precedent are constructive conditions of exchange. contract. PAROL EVIDENCE RULE • • Parol evidence is admissible to show that there is a condition precedent to a contract's coming into existence. ■ Except in a U. CONDITIONS A. that satisfaction will be judged by an objective standard. contract requiring subsequent amendments to be in writing. contract. a provision requiring that subsequent is valid. or that the other party was in bad faith with respect to the condition. It need not contain the price.C.C. EXPRESS CONDITIONS ■ A party seeking to sue on a contract must either show compliance with an express condition. if it involves a sale of goods for more than $500. each party must perform its obligations under the contract to be able to demand performance from the other side.C. • Parol evidence is admissible to prove a mistake in reducing the terms of an oral agreement to writing. CONSTRUCTIVE CONDITIONS OF EXCHANGE ■ Unless otherwise specified. a memorandum satisfies the Statute of Frauds if it indicates there is a contract. unless the contract involves personal taste. contract.

the buyer can reject a nonconforming shipment only if it substantially impairs the value of the installment and cannot be cured. ■ If the nonrepudiating party has not canceled the contract or materially changed position. ■ Under a U. when a party has reasonable grounds for insecurity. the repudiating party may retract the repudiation. Failure of the plaintiff to discharge that implied duty is a defense in a suit on the contract. a breach with respect to one installment is a breach of the total contract only if the nonconformity substantially impairs the value of the entire contract. then performance of one divisible portion permits the plaintiff to demand performance from the defendant for that divisible portion. 2.C.C.C. C. ■ Under the U.C. ■ If a party repudiates a contract before the time for performance. PROSPECTIVE INABILITY TO PERFORM ■ Under the U.. SUBSTANTIAL PERFORMANCE AT COMMON LAW ■ Under the common law. even if the plaintiff is in breach with respect to another divisible portion. even if there is an immaterial (nonwillful) breach.C. . However. she may demand adequate assurances from the other party and suspend her performance until she receives them. the plaintiff can sue for breach of contract if she has substantially performed the contract. The nonrepudiating party then has no right to sue for breach. the seller has a limited right to "cure" after a nonconforming tender. seek performance elsewhere. if a contract is determined to be an installment contract.. except for an installment contract. providing she gives adequate assurances. installment contract. D.C. DIVISIBLE CONTRACTS ■ If a contract is divisible.8 MicroMash MBE In Brief: Contracts Bar Exam Alerts 1. the seller must tender the correct number of conforming goods at the time specified in the contract or the buyer can reject the goods without liability. • The fact that a construction contract requires periodic payments does not make it a divisible contract. and sue for breach. • Under the U. the other party may treat the repudiation as a total breach.C. IMPLIED DUTIES OF GOOD FAITH AND FAIR DEALING • Each party to a contract has an implied duty to cooperate with the other party in achieving the objects of the contract.C..

C.C. ■ Liquidated damages are only collectible if the liquidated amount is reasonable either in respect to the amount of damages which the parties anticipated at the time of making the contract. • The buyer may seek damages — the difference between the market price and the contract price. she is entitled to collect restitution damages in quantum meruit.C. E.C.C. D. that is. the difference between his production cost for the goods and the contract price. B.MicroMash MBE In Brief: Contracts Bar Exam Alerts 9 VIII. ■ The seller may sue for the contract price if the goods cannot be sold in the seller's ordinary course of business. ■ The seller may sell the goods in a commercially reasonable manner and collect the difference between the contract price and the sales price. DAMAGES ■ Consequential damages are limited to those damages that were reasonably foreseeable. ■ The buyer may cover. ■ If the difference between the sales price and the contract price does not reasonably reflect the seller's damage because he has an unlimited supply of the goods.C. ■ The seller shifts the risk of loss to the buyer when she completes her delivery obligation for conforming goods. If the contract is FOB seller's place of business. ■ If a party is prevented from suing on the contract because the contract is unenforceable or because she has breached the contract. plus incidental damages. RISK OF LOSS UNDER THE U. REMEDIES A. then the measure of damage is the seller's profit. the delivery obligation is completed by placing conforming goods on a common . measured by the fair value of the benefit conferred on the other party. C. SELLER'S REMEDIES UNDER THE U. purchase the goods elsewhere and collect the difference between the cover price and the contract price. BUYER'S REMEDIES UNDER THE U. • The buyer may seek specific performance and replevin the goods where they are unique (and in other special circumstances). or in respect to the actual damages incurred. SPECIFIC PERFORMANCE ■ Both the buyer and the seller are entitled to sue for specific performance of enforceable land contracts.

■ If the seller ships nonconforming goods on a shipment or a destination contract.C. F. the risk of loss is on the buyer for a commercially reasonable time to the extent that the loss is not covered by seller's insurance. . If the contract is FOB buyer's place of business. ■ Under the U. ■ If the buyer breaches or repudiates the contract before the risk of loss passes to her. (2) performance becomes illegal. doctrine of impracticability. the seller retains the risk of loss during transit.C. she retains the risk of loss until the goods are accepted.10 MicroMash MBE In Brief: Contracts Bar Exam Alerts carrier with arrangements that they be shipped to the buyer. IMPOSSIBILITY AND FRUSTRATION ■ At common law. ■ If the buyer rightfully revokes acceptance of the goods. the risk of loss is on the seller to the extent that the goods are not covered by buyer's insurance. the delivery obligation is completed when the goods are delivered to buyer's place of business. or (3) performance is prevented by a nonforeseeable event the nonoccurrence of which was a basic assumption of the contract. the excuse of impossibility applies when the subject matter of the contract is destroyed or a party to a personal service contract dies. performance is excused when (1) goods identified to the contract are destroyed.

MicroMash ® MBE IN BRIEF CRIMINAL LAW & PROCEDURE .

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3. 5. HOMICIDE A. DEFINITION CRIMINAL HOMICIDE 1. 4. 2 2 2 D. 6. 4. 2. ANALYSIS OF HOMICIDE CRIMES 3 4 4 4 4 4 PROPERTY CRIMES A. DEFENSES TO HOMICIDE 1. THEFT CRIMES 1. 2. 3. Introduction Specific Intent Required Common Law Larceny . 3.MicroMash ® BAR REVIEW MBE IN BRIEF CRIMINAL LAW AND PROCEDURE Table of Contents 1 1 1 1 1 1 2 2 I. 2. II. 2. 5. B. 3 3 3 3 3 3 3 E. INNOCENT HOMICIDE 1. Murder Degrees Of Murder Voluntary Manslaughter Involuntary Manslaughter A Killing While Resisting Arrest Justifiable Homicide Excusable Homicide Self-Defense Defense Of Others Defense Of Property Public Authority Arrest Prevention Of Felony C.

4. 5. Breaking Entering Dwelling House Nighttime Specific Intent 6 6 6 6 6 6 6 6 E. ASSAULT AND BATTERY RAPE KIDNAPPING ARSON 6 7 7 7 7 7 7 8 8 INCHOATE CRIMES. 5. 3. F. 4. INCHOATE OFFENSES 1. H. 4. 3. 3. G. 2. D. 2. ACTUS REUS MENS REA 1. RECEIVING STOLEN GOODS ROBBERY BURGLARY 1. 2. 5. Principal — First Degree 2. C. 6. Principal — Second Degree Accessory before the Fact Accessory After The Fact Misprision Compounding 9 9 9 9 9 9 9 IV. Attempt Solicitation Conspiracy B. PARTIES A. B. 3. General Intent Specific Intent Constructive Intent Statutory Intent 9 9 10 10 10 10 10 ii . PARTIES TO CRIME 1. Embezzlement Obtaining Property By False Pretenses 5 5 B. GENERAL PRINCIPLES A.4. III.

D. DOUBLE JEOPARDY 17 17 17 18 18 18 iii . 1. 3. SEARCH. 1. 2. CONFESSIONS 14 14 14 15 C. 5. Right To Counsel Due-Process Standard Pretrial Stage Trial Stage Post-Trial Stage What Is The "Same Offense"? When Jeopardy Attaches When Retrial Is Permitted Appeals By The Prosecution Collateral Estoppel 15 15 15 15 E. 3. 4. 7. AND SEIZURE 1. 1. 3. 3. 11 11 11 D. 4. 2. 6.5. 2. 2. Arrest Search and Seizure Voluntariness Standard Miranda Standard Fourth Amendment Standard 12 12 12 12 B. FAIR TRIAL AND GUILTY PLEAS 15 15 16 17 F. 2. 2. RESPONSIBILITY 1. RIGHT TO COUNSEL LINEUPS AND OTHER FORMS OF IDENTIFICATION 1. 1. JUSTIFICATION 11 12 12 12 12 V. CONSTITUTIONAL PROTECTION OF ACCUSED PERSONS A. Strict Liability Crimes Mistake Of Fact As A Defense Mistake Of Law As A Defense Insanity Intoxication Duress Necessity Public Authority Domestic Authority 11 11 11 C. 2. ARREST.

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Adequate provocation A serious battery. in the commission of a dangerous felony. a. CRIMINAL HOMICIDE 1. abusive language does not. in the sense of desiring the homicide or taking such action that its occurrence is substantially certain (intent is implied from the use of a dangerous weapon).CRIMINAL LAW AND PROCEDURE I. . "Criminal" means that the defenses of justification or excuse are not available. B. the victim must be born alive (infanticide) or be not yet dead (euthanasia). and words conveying inflammatory information (if they are such as to inflame the passions of a reasonable person). 3. by poison or by lying in wait. with extreme atrocity and cruelty. observing a spouse in the act of adultery. constitute adequate provocation. a wanton and willful disregard of an unreasonable human risk (depraved heart). DEFINITION Homicide is the death of a human being caused by another. In the extremes. • • • 2. and any murder that is not first-degree murder. Malice aforethought is not present if the homicide is committed in the heat of passion caused by adequate provocation. Voluntary Manslaughter Voluntary manslaughter is an intentional homicide without malice aforethought. Second-degree murder is murder committed with malice but without deliberate premeditation. HOMICIDE A. "Cause" refers to legal or proximate cause. Degrees Of Murder First-degree murder is murder committed with deliberately premeditated malice aforethought. intent to inflict serious bodily harm. a homicide occurring in the commission or attempted commission of a dangerous felony. "Malice aforethought" means: • intent to kill. Murder Murder is a criminal homicide committed with malice aforethought.

Excusable Homicide Homicide is excused if the defense of mistake of fact or insanity is available. or contrary to public decency or good morals. but it is imperfectly exercised because the defendant unreasonably perceived a risk of death or serious bodily harm or used excessive force. e. or in preventing a dangerous felony. d. and not while in the commission of an unlawful act. Where necessity or coercion present Voluntary manslaughter also occurs when the defendant would have the defense of coercion or necessity if it were a nonhomicide crime.2 MicroMash MBE In Brief: Criminal Law & Procedure b. c. INNOCENT HOMICIDE Innocent homicide occurs when the death caused by another is either justified or excused. and the homicide must occur before the defendant has cooled off. 5. . It can be manslaughter if the arrest is unlawful and passion is aroused by the excessive use of force. a. A Killing While Resisting Arrest This is not a separate category of homicide. 2. then there is involuntary manslaughter under the theory of misdemeanor manslaughter. a breach of public order. defense of another. 1. b. In the course of an act malum in se When a homicide occurs in the course of a misdemeanor that is bad in itself. Criminal negligence Criminal negligence occurs when there is a substantial departure from the standard of reasonable care. Justifiable Homicide Homicide is justified if it is commanded by law or is committed in self-defense. C. Causation The adequate provocation must cause the heat of passion. 4. resulting in a high degree of risk of death or serious bodily injury (reckless conduct). or if it was an unintentional homicide committed without criminal negligence. Actual provocation The defendant must be actually provoked (a subjective test). Involuntary Manslaughter Involuntary manslaughter is an unintentional homicide committed with criminal negligence or in the commission of a misdemeanor malum in se. It is murder if intentional while resisting a lawful arrest. Imperfect self-defense Voluntary manslaughter also occurs when there is a right of self-defense or defense of another.

3. 2. Prevention Of Felony Anyone can use deadly force to prevent the commission of a serious felony. then it is murder unless it is manslaughter (when the killing is in the heat of passion caused by adequate provocation). ANALYSIS OF HOMICIDE CRIMES If intentional homicide. It is not limited to defending family members. b. E. Defense Of Others A person has the right to defend others under the same circumstances where he can defend himself. DEFENSES TO HOMICIDE 1.e. d. Public Authority Killings commanded by public authority are justified. Deadly force Deadly force is justified where the defendant reasonably believes she is in immediate danger of death or serious bodily harm. there is no right to use deadly force in defending property. Retreat — when required Retreat is not required under the majority view. 6. and otherwise had the right to use self-defense. . Self-Defense a. Reasonable mistake does not vitiate the defense. which in fact does cause death. 5.. and nondeadly force to arrest for a misdemeanor. i. 4. Defense Of Property Except when protecting one's home against a person intent on committing a serious felony. Nondeadly force Nondeadly force.MicroMash MBE In Brief: Criminal Law & Procedure 3 D. and the minority view does not require retreat unless the defendant is outside of his home and can retreat in safety. force neither intended nor likely to cause death. or if she withdrew from aggression. Arrest A police officer or a civilian acting under police direction can use deadly force if necessary to arrest for a felony. c. Right of aggressor to use self-defense An aggressor has the right to use deadly force if she originally used nondeadly force and was met with deadly force. communicated that fact. or innocent homicide if it is justified or excused. is justified even though the defendant is not threatened with death or serious bodily injury as long as there is a threat of some harm.

. Common Law Larceny Common law larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. commit a willful act in serious disregard of a severe danger. Specific Intent Required a. Employers have constructive possession of property in the hands of lower-level employees. then it is murder if there is an intention to inflict serious bodily harm. otherwise. Coincidence of specific intent and prohibited conduct The specific intent must coincide with the prohibited conduct for a particular crime to occur. and obtaining property by false pretenses are mutually exclusive common law crimes. where there is the intent and capacity to pay for property that is for sale. it is innocent homicide. or if the homicide is in the course of a dangerous felony. No intent to steal The specific intent is not present where the intent is only to borrow and an ability to return exists. b. II. intent to sell the property back to the owner.4 MicroMash MBE In Brief: Criminal Law & Procedure If not intentional. Intent to deprive another permanently The specific intent necessary for theft crimes is the intent to steal or to permanently deprive the owner of property. The specific intent is not present if the taking is caused by a mistake of fact or mistake of law. PROPERTY CRIMES A. and where there is the intent to take money to repay a debt. It is involuntary manslaughter if committed with criminal negligence or in the course of a misdemeanor malum in se. or intent to pledge or pawn if there is not a substantial capacity to redeem. c. 2. Introduction Larceny. It is present when property is taken with intent to claim a reward. intent to abandon. THEFT CRIMES 1. b. embezzlement. 3. Possession in its ordinary sense means the legal right to control an object for a reasonably long period of time. a. Possession The distinguishing characteristic of larceny is that it is a taking from one in possession. Constructive possession "Constructive possession" means legal possession where factual possession does not exist.

. Carrying away The carrying away requirement is satisfied by a very slight movement. because the original trespass is deemed to be "continuing" until that time. 4. The victim must rely upon the false representation and pass title. Conversion is a serious act interfering with the owner's rights. There must be the intent to defraud. An innocent agent can accomplish the taking. Obtaining Property By False Pretenses "False pretenses" is a false representation of a material fact relied upon by the victim which induces the victim to pass title to property. The representation must actually be false and be of a material past or present fact. c.MicroMash MBE In Brief: Criminal Law & Procedure 5 Owners have constructive possession of a package's contents when a bailee breaks bulk and steals part of a package. The converter must be in lawful possession. The defendant must know that the representation is false and intend to defraud. yet was not unlawful because there was no intent to steal at the time of the taking. a crime is committed when the intent to steal is formed." Owners have constructive possession of property delivered by mistake. Inability to fulfill a contractual obligation is not embezzlement. A prediction of a future event or a false promise is not sufficient. e. d. The crime is called "larceny by trick. Owners of mislaid property or lost property with a clue to ownership have constructive possession of it. Embezzlement Embezzlement is the fraudulent conversion of the property of another by one who is already in lawful possession. Taking The taking requirement is satisfied by severing the article from the owner's possession. Trespass The trespassory requirement means that the property must be taken without the consent of the person in possession. Owners have constructive possession of property when actual possession but not title is taken from them by fraud. The property embezzled must belong to another. A joint owner has possession of all parts of jointly owned property. If the original taking was without consent. 5. but not by destroying property while it is in the owner's possession.

3. 1. even though it is unlocked. Consent. D. but must not be abandoned. If entry is obtained by fraud. The victim must be placed in fear by either force or intimidation. crosses into the dwelling through the opening created by the breaking. 4. Nighttime Nighttime occurs during the period of darkness between sunset and sunrise. The term "from the person" means goods within the control of the victim. and the intent to deprive the true owner of the property. 5. All of the elements of larceny are necessary for robbery. BURGLARY Common law burglary is the breaking and entering of the dwelling house of another with the intent to commit a felony. or the intentional placing of the victim in apprehension of receiving an immediate battery. Entering Entering occurs when any portion of the defendant's body. If entry is gained without a breaking. 2. Dwelling House A dwelling house of another is a structure regularly occupied for habitation. The force need not be great or applied directly. Breaking Breaking is the opening of any enclosure. C. a breaking can occur if the defendant enters another part of the real estate by opening a door or window. RECEIVING STOLEN GOODS This crime requires the receiving of stolen property. . or an instrument used by him to accomplish the crime. the knowledge that it is stolen. but must be applied either intentionally. It need not be occupied at the time of the breaking. self-defense. ASSAULT AND BATTERY A battery is the unlawful application of force to the person of another. and the right to apply force because of a position of authority are defenses to a battery. Specific Intent At the time of the breaking and entering. An assault is either an attempt to commit a battery.6 MicroMash MBE In Brief: Criminal Law & Procedure B. ROBBERY Robbery is larceny from the person by force or intimidation. The knowledge must coincide with the act of receiving the property. or in the commission of an act malum in se. the defendant must have the intention to commit a felony that is causally connected to the breaking and entering. The test for knowledge is subjective. or with criminal negligence. E. there is a breaking.

a. Defense of impossibility There is no impossibility defense if the crime attempted. Attempt An attempt is a step in the direction of committing a crime. or unconsciousness. the consent is valid. a drug-induced stupor. the more likely that the perpetration has been reached. However. III. or when the female is unable to consent because of drunkenness. . fraud in the inducement. The closer to the time and place of the scheduled execution of the criminal act. If the fraud relates to a collateral matter. Intercourse is without consent if procured by force. b. Intercourse requires penetration. although there is a defense under some statutes. Kidnapping for ransom is an aggravated form of kidnapping. INCHOATE OFFENSES 1. If the defendant has completed the last acts she is required to perform. the common law crime of attempt is not committed. There must be the intent to burn. KIDNAPPING Kidnapping is the unlawful forcible confinement and asportation of a person against his or her will. Consent is not a defense if it is produced by fraud with respect to the nature of the act itself — fraud in the factum. is factually impossible to commit. RAPE Rape is unlawful sexual intercourse with a female without her consent. INCHOATE CRIMES. and dispense with the asportation requirement. and not title. c. If the act attempted is not legally a crime because of facts unknown to the actor. If the crime is successfully completed. PARTIES A. she is guilty of attempt. ARSON Arson is the malicious burning of the dwelling of another. because of circumstances unknown to the actor. Reasonable mistake of fact concerning age is not a defense. there is no defense at common law. if the attempt is inherently impossible or the act intended is not a crime. Abandonment If the attempt is abandoned because of a change of heart. there is no attempt. H. Consent is not valid if the female is under the age of consent.MicroMash MBE In Brief: Criminal Law & Procedure 7 F. The test for the "dwelling of another" requirement is the right to possession or occupancy. d. Specific intent The defendant must intend to commit the crime attempted. G. Some statutes define kidnapping to include secret confinement. coupled with the intention to commit that crime. the attempt is merged. The burning must ignite the real estate. usually 16. Close to actual commission The activity must reach the perpetration stage. threat of harm.

solicitation is merged into the solicitor's liability as an accomplice. If . or otherwise encourages the other to commit that crime. A supplier who knows the criminal purpose will be a conspirator if he has a stake in the outcome. whether legal or factual. d. e. Specific intent The parties to a conspiracy must intend both to agree and to accomplish the objective of the conspiracy. at the time of the overt act. There is also no conspiracy if only the parties essential to the commission of the offense are participants. orders. the conspiracy crime is not complete until the overt act is completed. f. then a conspiracy has been formed and the solicitation merges into the conspiracy. with the intention that another commit a crime. b.8 MicroMash MBE In Brief: Criminal Law & Procedure 2. then the other must likewise be acquitted. Unlawful conduct Unlawful conduct encompasses more than criminal conduct. and can be inferred from a concerted action. or the two persons are husband and wife. Does not merge Conspiracy is a combination for an unlawful purpose. Solicitation Solicitation occurs when the defendant. or in overt-act jurisdictions. h. If one party feigns agreement. advises. Scope of a conspiracy A conspiracy begins at the time of agreement. if the goods are highly regulated. is not a defense to conspiracy. If the crime is completed. or only one person is acting for two corporations. If all conspirators but one are acquitted. Agreement can be inferred The agreement necessary for a combination need not be formal. or one of the persons is a member of a legislatively protected class. If the person solicited agrees to commit the crime. g. The overt act can be committed by any conspirator and need only be in preparation to commit the crime. but is required by many statutes. there is no conspiracy under the common law. 3. If an overt act is required. Impossibility Impossibility. incites. Overt-act requirement An overt act was not required at common law. It does not merge into the target offense. entices. Conspiracy a. It ends with the attainment of its objective or with abandonment. c. or if the crime contemplated is very serious. Number of persons required A person cannot commit a conspiracy alone.

ACTUS REUS Before there can be a crime. GENERAL PRINCIPLES A. they are all parts of one conspiracy. and all statements made by one conspirator in furtherance of the conspiracy are admissible against the others in evidence. Most jurisdictions exempt assistance to close relatives. Misprision Misprision of a felony. she is guilty of all crimes committed by the other conspirators in furtherance of the conspiracy which are within the scope of the conspiracy. IV. Accessory Before The Fact The person who is not present at the scene but aids or encourages the commission of a felony is an accessory before the fact. Principal — Second Degree The person who is present but does not actually perpetrate the felony is a principal in the second degree. is the failure to report or prosecute a known felon. there must be a criminal act. Failure to act is criminal when . 4. i. B. 2. j. Compounding Compounding a felony is receiving consideration for failure to report or prosecute a known felon. 6. It may consist of words or actions. PARTIES TO CRIME 1.MicroMash MBE In Brief: Criminal Law & Procedure 9 the agreement covers several crimes. If parties know of necessary acts of others to complete the criminal activity. Principal — First Degree The person who actually perpetrates a crime is a principal in the first degree. Accessory After The Fact The person who aids or assists a felon to avoid apprehension is an accessory after the fact. Effects of existence of a conspiracy Once a person is a conspirator. it is necessary to notify all conspirators of the withdrawal. 5. Withdrawal To withdraw from a conspiracy. The act must be voluntary and be committed while conscious. a common law misdemeanor. The person must know of the commission of the felony. there is only one conspiracy. 3.

Failure to act is not criminal. or mitigation. burglary: intent to commit a felony within the dwelling. d. the intent to accomplish the required act. if the act would be futile if performed.10 MicroMash MBE In Brief: Criminal Law & Procedure a duty to act is imposed by law as a result of a contract. so as to show a wicked or mischievous intent. Intent means either desiring the result or taking such steps that the result is substantially certain to occur. believes it to be true. . a previous act. Wantonness "Wantonness" means an act done without regard to the consequences. theft crimes. Malice Malice only requires the doing of a criminal act without excuse. 3. all crimes require at least general intent. or a relationship. c. solicitation: intent to have the crime committed by the solicited. attempt and conspiracy: intent to commit the target crime. MENS REA The required mental state must occur simultaneously with the actus reus. a. 4. B. and receiving stolen property: intent to deprive the owner of property. In some instances. Statutory Intent Specific intent is also required in statutory crimes where the act must be done willfully. however. Constructive Intent Intent can be inferred from the accomplishment of an act. Willfully "Willfully" means intentionally or purposely and in some instances with evil intent. General Intent Except for strict liability crimes. or deliberately avoids discovering it. that is. robbery. 1. even though an actual intent does not exist. justification. knowingly. either negligence or recklessness constitutes a constructive intent. The following crimes require a specific intent in addition to a general intent: • • • • • murder: malice. Specific Intent Specific intent is the intent to cause the harmful consequence of said act. wantonly. b. Knowledge Knowledge includes the situations where one perceives a fact. 2. or with malice.

or to conform his conduct to the requirements of the law. Mistake Of Law As A Defense Mistake of law is a defense only where there is reliance on the decision of a court or high administrative official. Intoxication can also prevent the formation of the premeditation required for first-degree murder. not criminal when authorized or commanded by law. Strict Liability Crimes Strict liability crimes do not require a general intent. Irresistible Impulse Test D is not guilty if mental disease prevented him from controlling his conduct. Involuntary intoxication is a defense where the defendant does not know the nature and quality of her act. the mere accomplishment of the act invokes criminal liability. Model Penal Code Test D is not guilty if at the time of the conduct. the defendant reasonably believes facts. JUSTIFICATION An action is justified and. but can be a defense to a specific intent crime where the intoxication prevents the formation of the required intent. if true. therefore. then she did not know it was wrong. The M'Naghten Test D is not guilty where. 2. or that it was wrong. b. C. as a result of a mental disease or defect.MicroMash MBE In Brief: Criminal Law & Procedure 11 5. or where an honestly held mistake of law prevents or negates the specific intent required. RESPONSIBILITY 1. In specific intent crimes. 6. Insanity There are four tests for insanity: a. Durham Rule D is not guilty if her unlawful act was the product of a mental disease or defect. though unreasonable. Intoxication Voluntary intoxication is not a defense to a general intent crime. belief is sufficient. because of a defect of reason or disease. d. would make his actions noncriminal. an honestly held. The Model Penal Code also requires that the degree of certain offenses be reduced because of diminished mental capacity. in the case of general intent crimes. c. 7. . D lacked substantial capacity to appreciate the criminality of the conduct. D. Reasonable mistake of fact is not a defense to strict liability crimes. or if she did know. she did not know the nature and quality of her act. which. Mistake Of Fact As A Defense Mistake of fact is a defense to a crime when.

gives grounds to arrest without a warrant. 2. 4. which a person of reasonable firmness in the situation would be unable to resist. Statements made to informers are not the subject of a search. Search And Seizure Evidence obtained as a result of an illegal search or seizure is generally inadmissible. SEARCH. AND SEIZURE 1. V. Otherwise. Search A search occurs when the governmental activities violate the right to privacy upon which the defendant justifiably relies. A misdemeanor amounting to a breach of the peace. Duress An act short of homicide is justified if the defendant was coerced to commit the act by the use of. as well as affording protection from electronic eavesdropping. if it is a limited threshold inquiry ("stop and frisk") when an officer has reason to believe his physical safety may be threatened. and she commits the act in order to avoid a greater harm. b. or the threat of use of. Arrest An arrest occurs when an individual is deprived of freedom of movement for the purpose of commencing a criminal action.12 MicroMash MBE In Brief: Criminal Law & Procedure 1. a. 2. Necessity An individual who commits a criminal act other than homicide in response to a nonhuman force has the defense of necessity if she has not voluntarily put herself in that position. ARREST. . 3. a warrant is required. An item in plain view is not the subject of a search except where the viewer is illegally on the premises. Public Authority A public officer pursuant to public duty may perform acts that would be criminal if not done pursuant to that duty. unlawful force against his person or the person of another. Warrantless searches A search without a warrant is valid: • • if it is made incident to a valid arrest. Incriminating statements that are the products of an illegal arrest are inadmissible for substantive purposes. Domestic Authority A parent or schoolteacher may use reasonable physical force to discipline a child. This protection covers the area of the home and its surroundings. or a reasonable belief that a person has committed a felony. CONSTITUTIONAL PROTECTION OF ACCUSED PERSONS A.

or (2) if a third party who has joint control over the property with the defendant gives consent. e. if it is incident to protecting the borders of the country. or with blanket warrants which do not have to be obtained in accordance with strict procedures. The defendant can attack the warrant on the ground that the affiant deliberately lied. • • • c. instrumentalities. d. if necessary for national security in dealing with foreign affairs. and that the warrant would not be sufficient without those lies. Standing A defendant has standing to raise a search-and-seizure issue only when she can show both a possessory interest in the items seized and a legitimate expectation of privacy in the premises searched.MicroMash MBE In Brief: Criminal Law & Procedure 13 • • • • • if the police enter a private building in hot pursuit. if there is some other emergency which makes it reasonable. or where other exigent circumstances require an immediate search. if it is on premises subject to regulatory licenses. if the object searched is in official custody. and at a reasonable hour. Fruits of an illegal search If there is an illegal search. Illegally seized evidence may be used to impeach credibility. (1) if voluntary consent. Search warrants can be issued to search for the fruits. if the search is of an automobile which is capable of being moved by its occupants and the police have probable cause to believe that it is carrying contraband. is given by the defendant. Search warrants A valid search warrant requires that the officer applying personally contact an independent official and submit an affidavit which sets forth reliable facts which establish grounds for the issuance of the warrant. The affidavit may be based upon hearsay evidence as long as the neutral magistrate can determine the reliability of the informant. or evidence of a crime held by third parties. and are inadmissible for substantive purposes unless they are found by means sufficiently distinguishable to be purged of the taint of the illegal search. not under threat or compulsion. The application for the warrant must specifically state the material or person to be seized and the place to be searched. all evidence and verbal statements that are obtained are fruits of that search. Administrative searches Administrative searches are permitted either without warrants. f. . and which may cover large geographic areas.

a. 2. c. Interrogation "Interrogation" refers not only to express questioning. If the right to counsel is exercised. Custody Custody occurs when the defendant is arrested or deprived of freedom in a significant way. Miranda rights The Miranda rights are: (1) the right to remain silent. it can be waived later. Miranda Standard Statements made as a result of custodial interrogation are inadmissible unless Miranda warnings. b. g. it will probably be excluded as the fruit of the tainted confession. i. sex. and (4) the right to be told that anything said by a defendant can be used against him. d..e. . Adoptive admissions Miranda excludes the operation of the adoptive admission-by-silence rule when the defendant is in custody. e. CONFESSIONS 1. it cannot thereafter be waived until counsel is furnished.14 MicroMash MBE In Brief: Criminal Law & Procedure B. f. The voluntariness of a confession is a preliminary question of fact to be determined by the trial judge. but any words or actions on the part of the police that they know or should know are likely to elicit an incriminating response from a suspect. and Miranda rights are waived. Private persons Miranda does not apply to custodial interrogation by private persons. If a confession is made soon after an earlier tainted confession. Waiver The warning must be given before interrogation begins. health. one obtained by the threat of or application of physical force or psychological coercion. (2) the right to an attorney. or their equivalent. and education of the defendant are relevant in determining psychological coercion. will be excluded from evidence. Voluntariness Standard An involuntary confession. If the right to remain silent is exercised. are given. A waiver of Miranda rights must be intelligently and knowingly made after the warnings are given. Impeachment Statements that are excluded for substantive purposes by Miranda can be used to impeach. The age. (3) the right to a court-appointed attorney if indigent.

Incompetence of counsel is not a denial of the right to counsel. Failure to comply with this obligation renders identification made at the lineup per se inadmissible. LINEUPS AND OTHER FORMS OF IDENTIFICATION 1. and in civil-commitment hearings. b. Due-Process Standard Where an identification is made before indictment. Corroboration A confession must be corroborated before a conviction can be obtained. FAIR TRIAL AND GUILTY PLEAS 1. Bail may be denied to those arrestees who may be dangerous if released. in juvenile proceedings where incarceration is a possibility. the results of that identification. Pretrial Stage a. and actual prejudice is shown. but the defendant is entitled to the same discovery rights as the prosecution. 3. Pretrial release The purpose of bail is only to assure that the defendant will be present at trial. RIGHT TO COUNSEL An indigent criminal defendant has a right to court-appointed counsel in all felony cases. either in a lineup or showup. . If the state provides an appeal procedure as of right for criminal convictions. and a later in-court identification inadmissible unless the prosecution can show by clear and convincing evidence that the identification made at trial was made from sources independent of the identification at the lineup. Right To Counsel A criminal defendant has the right to have counsel present at all post-indictment lineups. Discovery Pretrial discovery is not constitutionally required. Fourth Amendment Standard A statement is inadmissible if it is obtained as a result of detention following an illegal arrest. C. D. unless it is a result of conflict of interest or is so pronounced that counsel has not given effective assistance. the defendant has a right to counsel. are inadmissible only where the pretrial identification was unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances surrounding the identification is relevant in applying this due-process standard. and a free transcript for one appeal.MicroMash MBE In Brief: Criminal Law & Procedure 15 h. in misdemeanor cases where the defendant is actually incarcerated. E. and a subsequent in-court identification. Convictions obtained when counsel was not provided cannot be used to impeach. 2. The right to counsel attaches during custodial interrogation and at arraignment.

including incourt television coverage. and. but a violation of this right requires complete dismissal of the charges. in which the jurors have been examined for bias or prejudice. is not prejudicial unless the jury is unable to adjudicate fairly or the defendant is unable to present effectively her defense due to such coverage. Trial Stage a. Public trial The defendant has a right to a public trial. otherwise. e. b. and (4) the prejudice to the defendant. Impartial judge The trial judge must be impartial and have no interest in the outcome of the case. The right to a speedy trial does not commence until the defendant is formally accused of the crime. Where six-person juries are used. The prosecution in a capital case can exclude persons whose opposition to the death penalty is so strong as to substantially impair the performance of their sentencing duties. but neither the press nor the public has a right to be present at a pretrial hearing. and has the obligation to furnish the defense with favorable evidence. The defendant is entitled to a jury in which persons of any racial or ethnic background or sex have not been systematically excluded. to assist in her own defense. 2. (2) the reason for the delay. . d. she is incompetent to stand trial. generally. Jury trial Less than unanimous and fewer than 12-person juries are constitutionally permissible. However. and to consult with her lawyer. Speedy trial The factors that determine if the defendant's constitutional right to a speedy trial has been violated are: (1) the length of the delay. Publicity A defendant is entitled to be tried by a jury which is unaffected by media coverage of the events and the subject matter of the trial. d. a unanimous verdict is required. but a jury may not consist of fewer than six members. The right can be waived. nor do they have an absolute right to be present at trial. A defendant does not have a right to compel a private trial. Competence The defendant must be able to understand the charges against her. Prosecutor's misconduct The prosecutor may not use false or perjured testimony. media coverage. A defendant has the right to a jury trial in any criminal proceeding (including a contempt proceeding) where there is a possibility of a jail sentence in excess of six months. c.16 MicroMash MBE In Brief: Criminal Law & Procedure c. (3) the defendant's assertion of his right.

The plea must be voluntarily given. The Eighth Amendment prohibits imposition of punishments that are physically barbarous. 3. but not matters of affirmative defense. and in a nonjury trial when the introduction of the evidence begins. and the maximum sentence he can receive. Guilty pleas Before a defendant can plead guilty. Confrontation The defendant's constitutional right to confront witnesses against her is not violated when she has had the opportunity to cross-examine the witness at an earlier occasion and the witness is genuinely unavailable at trial. the trial of either offense will bar a later trial of the other. unless there is a waiver. If one activity is a crime under two different jurisdictions. or involve the unnecessary and wanton infliction of pain. Burden of proof Due process requires that the prosecution prove all of the elements of its case beyond a reasonable doubt. If one offense is a lesser included offense of the other. . i. unless the statements implicating the nonconfessing defendant can be excised. and may not be sentenced to jail solely because he is indigent and lacks the ability to pay a fine as an alternative. such as insanity.MicroMash MBE In Brief: Criminal Law & Procedure 17 f. he must be informed of his right to trial. 2. F. Severance The defendant has a constitutional right to a severance when the out-of-court statement of a co-defendant implicating both defendants will be admitted at the trial but the co-defendant will not testify. g. DOUBLE JEOPARDY A defendant may not be put in jeopardy for the same offense twice. h. I. or one of the elements of the greater offense had not occurred at the time of the earlier trial. Out-of-court statements of witnesses present at the trial offered for their truth likewise do not violate the right of confrontation. Post-Trial Stage The defendant is entitled to be represented by counsel at sentencing. double jeopardy will not bar either prosecution. the elements of the charge against him. What Is The "Same Offense"? Two offenses are considered the same offense for purposes of double jeopardy unless each offense contains an element not contained in the other. When Jeopardy Attaches The defendant is in jeopardy in a jury trial when the jury is impaneled.

or if the defendant waives the defense of double jeopardy. . 4. Appeals By The Prosecution The prosecution can constitutionally appeal a criminal case when the decision by the appellate court will not subject the defendant to a new trial. 5. Collateral Estoppel The prosecution may not relitigate issues that were determined in the defendant's favor in a previous criminal trial.18 MicroMash MBE In Brief: Criminal Law & Procedure 3. if there is a failure in the mechanics of trial that is not the fault of the prosecutor. A judge after a retrial may not sentence a defendant to a greater term unless his reasons for doing so affirmatively appear on the record. When Retrial Is Permitted Retrial is permitted after jeopardy attaches if the defendant successfully appeals her conviction.

and the victim dies. 3. MURDER 1. ■ Deliberately and unjustifiably driving a car onto a crowded sidewalk would constitute abandoned-heart murder if a death results. ■ A defendant is not guilty of felony murder if the commission of the felony has not yet begun or is completed at the time the death occurs. . but would likely cause great bodily harm. or playing Russian roulette.MicroMashv BAR REVIEW BAR EXAM ALERTS AT-A-GLANCE CRIMINAL LAW & PROCEDURE I. 4. DEPRAVED HEART ■ Firing bullets in a confined space or through a wall. that person is guilty of murder. is abandoned-heart murder if a death results. HOMICIDE A. FELONY MURDER ■ A defendant is not guilty of felony murder unless he is guilty of the commission or attempted commission of the underlying felony. 2. even if the victim died because of a peculiar medical condition. she has intended the act even if she subjectively does not desire that the result occur. ■ If a person takes steps to make substantially certain that an event will occur. even if the victim asks the person to kill her. INTENT TO DO GREAT BODILY HARM ■ If a person commits an act that would not ordinarily inflict fatal injury. ■ A person who sets up a mechanical device that kills a person is guilty of the crime that would have been committed if the person had personally set off the device intentionally. INTENT TO KILL ■ A mercy killing is murder because it is an intentional killing. ■ Intent to do great bodily harm can be inferred from the use of a weapon to inflict bodily injury.

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■ A co-conspirator of the felon who actually commits the killing is not guilty of felony murder if the killing was beyond the scope of the conspiracy. ■ The felonies of manslaughter or assault and battery cannot be the underlying felony for felony murder. • If a third party kills a co-felon in the course of a felony, the surviving felon is not guilty of felony murder because the killing is justifiable homicide.

5. DEGREES OF MURDER • A homicide accompanied by malice in the form of a deliberate intentional killing is first-degree murder. ■ A death in the course of the serious common law felonies of Mayhem, Rape, Sodomy, Burglary, Arson, Kidnapping, Escape, and Robbery ("Mrs. Baker" felonies) is first-degree murder ("felony murder"). ■ A murder accompanied by malice in the form of intent to do great bodily harm is usually second-degree murder. • A murder accompanied by malice in the form of a depraved heart is seconddegree murder.

B. MANSLAUGHTER
1. VOLUNTARY MANSLAUGHTER
■ To reduce a murder crime to voluntary manslaughter, there must be adequate provocation to inflame a reasonable person into the heat of passion and the defendant must have actually been in such a state. A violent battery, spousal adultery, mutual affray, and an illegal arrest are adequate provocation. The killing must also take place in a time frame where the passions of a reasonable person would not have cooled and the passion of the defendant must not in fact have cooled. ■ A murder crime can be reduced to manslaughter if the defendant had a defense (e.g., a right to defend herself or another), but used that defense imperfectly (e.g., by employing excessive force). • If the defendant would only have been guilty of voluntary manslaughter if she had killed A, she is only guilty of voluntary manslaughter if she shoots at A, misses and kills V.

2. INVOLUNTARY MANSLAUGHTER ■ A death occurring in the course of willful, wanton conduct is involuntary manslaughter. ■ A death occurring in the course of a misdemeanor ma/um in se is involuntary manslaughter.

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■ A person under a duty to aid another person because of a contractual or family relationship is guilty of involuntary manslaughter if a death occurs because of unreasonable failure to give that aid. A person under no duty, however, can unreasonably refuse to give aid without any criminal liability. C. INNOCENT HOMICIDE

1. SELF-DEFENSE
■ An aggressor does not have the right of self-defense, unless she attacked with nondeadly force and is met with deadly force, or unless she completely ends her aggression and makes that known to the person attacked. ■ A person committing a felony does not have the right of self-defense. ■ An individual has the right to use deadly force to apprehend a felon committing a dangerous felony or to prevent a dangerous felony from being committed. Only nondeadly force can be used if the crime is a misdemeanor. • Force is classified as deadly or nondeadly by whether it is likely to cause death, not whether death in fact occurred.

■ A belief that the person defended has the right of self-defense is a defense in a criminal prosecution, even if the person defended does not in fact have the right of self-defense (e.g., because she was the aggressor). (To avoid liability in tort, though, the person defended must have actually had a right to self-defense.) ■ A person does not have the right to use self-defense to avoid being arrested by a police officer. ■ If an individual has a perfect right of self-defense but, in the exercise of that right, kills the wrong person, the homicide is still excused. 2. DEFENSE OF PROPERTY • Defense of property is not sufficient to justify the use of deadly force. ■ A killing commanded by the law, such as an execution or killing on the battlefield in time of war, is not murder because it is a justifiable homicide. 3. EXCUSABLE HOMICIDE ■ Duress relates to coercion by a human force, whereas necessity relates to coercion by nonhuman elements. Duress and necessity cannot be defenses to a homicide crime, but can be defenses to an underlying felony, which would then be a defense to felony murder.

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II. PROPERTY CRIMES
A. THEFT CRIMES

1. LARCENY
■ The specific intent necessary for larceny is not present if the defendant intends to return the property at the time he committed the trespassory taking. ■ If the defendant intended to return the property, the fact that it was not returned because it was unintentionally destroyed does not transform the intent into the intent to steal. However, the intent to destroy is equivalent to the intent to steal. ■ If possession is obtained by fraud, the crime is larceny by trick, not embezzlement. ■ The trespassory act necessary for larceny can be committed by an innocent agent of the defendant. ■ A person with title to property can be guilty of larceny if he wrongfully takes that property from a person rightfully in possession. ■ A lower-level employee in possession of the goods of an employer, or a bailee who breaks the bulk of the goods bailed, does not have a sufficient possessory interest to have the taking of those goods constitute embezzlement. 2. EMBEZZLEMENT ■ Embezzlement only occurs when a person rightfully gains possession of another's property and then converts it to his own use. 3. OBTAINING PROPERTY BY FALSE PRETENSES ■ To be guilty of obtaining property by false pretenses, the victim must give up title to property in reliance on a false representation of material fact by the defendant. ■ The defendant's honest belief that the representation is true prevents the defendant from having the specific intent necessary for the crime of obtaining property by false pretenses, even if the belief is unreasonable.

4. RECEIVING STOLEN GOODS ■ A belief that the goods were not stolen is a defense to the crime of receiving
stolen goods. ■ If the goods are not in fact stolen goods, the defendant cannot be convicted of receiving stolen goods even if she believes that the goods are stolen.

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5. ROBBERY ■ Larceny is an essential element of (and merges into the more serious crime of) robbery when all of the elements of robbery are found. ■ The battery that constitutes the force employed in a robbery merges into the more serious crime of robbery. ■ The use of force or intimidation to retain possession of property already stolen is not robbery. ■ The threat to use force in the future is the threat necessary for extortion, not robbery. 6. BURGLARY ■ In order to be guilty of burglary, the defendant must have the specific intent to commit a felony on the premises at the moment of the entering. ■ Burglary is committed if the defendant breaks and enters a part of a dwelling house, even if she does not break and enter when she first enters the dwelling. ■ The breaking and entering need not occur simultaneously. ■ The breaking and the entering necessary for burglary are present if entry is obtained by fraud. ■ A person cannot be guilty of burglary for breaking and entering into her own home. ■ A defendant is guilty of burglary even if not successful in completing the intended felony.

B. OTHER CRIMES
1. ASSAULT AND BATTERY ■ The defendant never has the obligation to retreat if she is using nondeadly force as a defense to an assault or battery. 2. RAPE; STATUTORY RAPE ■ Consent to intercourse is not a defense if the victim's assent to the act performed is procured through fraud that obscures the fact that intercourse is taking place. ■ An underage female who engages in intercourse cannot be held guilty of conspiracy to commit statutory rape or as an accessory to statutory rape. 3. KIDNAPPING ■ Demand for a ransom is not an element of simple kidnapping.

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4. ARSON - A person cannot be guilty of the common law crime of arson for burning her own house. ■ A minimal burning of part of the dwelling house is all that is required for arson, but the burning of the contents alone is not sufficient.

III. INCHOATE CRIMES
A. OFFENSES 1. ATTEMPT
■ To be guilty of the crime of attempt, the defendant must intend to commit the crime that he is attempting. • If the act that the defendant intended to accomplish is not a crime, the defendant is not guilty of an attempt even if he thinks he has committed a crime. ■ If the defendant is successful in his attempt and commits the substantive crime, there is no separate crime of attempt; the attempt and the crime merge. 2. CONSPIRACY ■ A co-conspirator is guilty of the substantive crimes committed by any other co-conspirator during the course of the conspiracy and within the scope of the conspiracy. ■ If a co-conspirator withdraws from the conspiracy and informs her coconspirators of the withdrawal, she is not guilty of the substantive crimes committed by the conspirators after the withdrawal, but is guilty of the conspiracy crime. ■ An overt act is not necessary to complete the conspiracy crime at common law, but is required today for federal conspiracy crimes and is required in some states. ■ The impossibility of accomplishing the object of the conspiracy is not a defense to conspiracy, but there is no conspiracy if the parties mistakenly believe that the lawful object of the conspiracy is a crime. ■ A person is not a conspirator unless she combines with another human being to commit an unlawful act or a lawful act by unlawful means. Persons who do not have the requisite intent to qualify as a conspirator do not count as that other person.

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■ A person is not a conspirator if she does not intend to combine to commit a crime. For example, a person is not a conspirator if she intends to combine only to do something which she believes is legal. ■ A person is not guilty of conspiracy if she combines with another person who is essential to the commission of the substantive crime (e.g., adultery). ■ Conspiracy does not merge into the substantive offense.

3. SOLICITATION
■ If the party solicited agrees to commit the crime, there is a conspiracy and the crime of solicitation is merged into it.

B. PARTIES TO CRIME
■ To be guilty as an accomplice, the person must know that the principal is committing a crime and must intend to help the principal. ■ If the act being committed by the principal is not in fact a crime, the accessory is not guilty despite his intent to help with an illegal act. ■ Presence at the scene of the crime plus encouragement of the principal to commit the crime is sufficient for accomplice liability.

IV. GENERAL PRINCIPLES
A. STATE OF MIND 1. GENERAL INTENT
■ To be guilty of a general intent crime, the intent to accomplish the act must coincide with the doing of the act. ■ If a person desires a result and that result occurs, even through an unexpected means, the person has intended the act for purposes of the criminal law.

2. SPECIFIC INTENT
■ To be guilty of a specific intent crime, the defendant must have the required specific intent at the time he is accomplishing the specific act. 3. STRICT LIABILITY ■ The doing of the actus reus is all that is required for the defendant to be guilty of a strict liability crime. ■ Specifically forbidding an agent to perform an illegal act is not a defense for a principal if performing that act constitutes a strict liability offense.

■ A person assisting a police officer is justified in using the same force that a police officer would be justified in using. but not to manslaughter. D. . ■ Improper medical treatment resulting in death is within the scope of the risk when an individual causes bodily harm. INTOXICATION ■ In a specific intent crime. intoxication is a defense if the intoxication prevents the defendant from forming the required specific intent. CAUSATION ■ If a person mortally wounds a victim. RESPONSIBILITY 1. ■ A mistake of law is not a defense to a general intent crime. JUSTIFICATION ■ A police officer is justified in using deadly force to apprehend a person who it reasonably appears is either committing or escaping from a dangerous felony. lack of causation is not a defense to a homicide crime if there was the required intent or misconduct. 4. 2. B. MENTAL DISORDER ■ A mental illness that causes delusions will not create the defense of insanity under the MNaghten test if the individual knows what she is doing and knows that it is a crime. C. The irresistible-impulse test is not part of the MNaghten test of insanity. ■ Intoxication can prevent the formation of the malice necessary to constitute first-degree murder and reduce the crime to second-degree murder. that person is not guilty of murder. Therefore. ■ A reasonable or unreasonable mistake of fact that prevents the specific intent from being formed is a valid defense to a specific intent crime. but death occurs from a totally independent cause. MISTAKE OF LAW OR FACT ■ A reasonable mistake of fact is a defense to a general intent crime. but a mistake of law that prevents the specific intent from being formed is a defense to a specific intent crime. The use of deadly force to arrest a person for a nondangerous felony or any misdemeanor is not justified.8 MicroMash MBE In Brief: Criminal Law Bar Exam Alerts ■ To be guilty of an attempt to commit a strict liability offense. the defendant must have the specific intent to commit the offense.

■ A hotel manager cannot validly consent to the search of rooms in the hotel that are rented to guests. The search need not take place immediately. ■ If a magistrate grants a search warrant. the property seized pursuant to the search is admissible. the entire automobile (including the trunk and containers in the automobile) may be searched. 4. ■ Probable cause can be based on the totality of the circumstances and does not specifically require evidence on both the basis for the search and the reliability of the informant. ■ Once an automobile is stopped with probable cause. WARRANTS ■ A search warrant can only be issued by a neutral and detached magistrate on the basis of probable cause. stops of all vehicles at a fixed checkpoint are permissible.MicroMash MBE In Brief: Criminal Law Bar Exam Alerts 9 V. or the search is made before there is a valid ground to arrest. AUTOMOBILE SEARCHES ■ The random stopping of automobiles without any probable cause constitutes an invalid search. but the suspect need not be warned that she need not give consent. CONSENT SEARCHES ■ The consent given by an individual to search her property must be voluntary. ARREST. ■ A third party can give valid consent to search areas over which she has joint access. 3. ■ A search incident to an arrest must be essentially contemporaneous with the arrest and only of the area within the arrestee's immediate control. CONSTITUTIONAL PROTECTION OF ACCUSED PERSONS A. However. and the police execute it believing in good faith that it is valid. then the evidence obtained by the search is inadmissible. ■ The warrant must state with particularity the place to be searched and the objects of the search. 2. SEARCH AND SEIZURE 1. ■ The police may stop a car and search containers within the car if they have probable cause as to the contents of the containers. SEARCH INCIDENT TO LAWFUL ARREST ■ If the arrest is invalid. .

LINEUPS ■ There is a right to counsel at a lineup only after the criminal process has commenced. ■ Interrogation can take the form of behavior by the police likely to induce the defendant to make a statement. CONFESSIONS ■ If a confession is coerced.10 MicroMash MBE In Brief: Criminal Law Bar Exam Alerts 5. ■ If a defendant agrees to submit to interrogation. it is nevertheless admissible to impeach. . he can be questioned about more subjects than the crime that is the primary object of the police interrogation. however. OTHER SEARCHES ■ A search at a border (or the functional equivalent thereof) does not require probable cause or a warrant. INTERROGATIONS ■ Miranda only applies when the suspect is interrogated while he is in custody. such admission is subject to the harmless-error rule. she cannot later complain that she was denied her right to counsel. C. D. If improperly admitted. ■ If evidence is inadmissible substantively because of a Miranda violation. RIGHT TO COUNSEL ■ A defendant has the right to counsel in all felonies and all misdemeanors for which she is actually incarcerated. no further questioning can take place until a lawyer is present and the defendant agrees to interrogation after consultation with his lawyer. B. ■ A defendant has the right to counsel for one appeal. If the "pat down" uncovers an object that may be a weapon. an intrusive search may be made for weapons. even by a private individual. ■ A "stop and frisk" is permitted only if there is a suspicion of criminality and may extend only to a "pat down" search. then it is inadmissible for any purpose. if she does. then both testimony about the lineup identification and a subsequent in-court identification are inadmissible. ■ An individual has the right to act as her own counsel and. 1. ■ A regulatory search does not require probable cause. ■ If the likelihood of a proper identification is so remote or the lineup is so prejudicial that it offends due process standards. ■ If the defendant exercises his Miranda rights by demanding a lawyer.

5. 3. There must also be prejudice to the defendant. RIGHT TO CONFRONTATION ■ The confrontation clause is satisfied if the defendant had the right to cross■ If the statement of one defendant is admissible against the confessor. the public has a right to a public trial. A trial must be public unless there is either a substantial likelihood of prejudice to the defendant or a need to limit access to ensure an orderly proceeding. but also implicates a co-defendant and is inadmissible against the co-defendant. ■ The defendant is not denied the right to a speedy trial solely by the passage of time. SPEEDY TRIAL ■ The right to speedy trial does not commence to run until the defendant is charged with the crime. E. however. ■ The jury need consist of only six persons. a nine-person verdict is constitutional. JURY TRIAL ■ The defendant is entitled to be tried by a jury if the period of incarceration can exceed six months. 2. the court must either excise the offending portions of the statement or grant a severance. ■ The defendant is entitled to be tried by a jury chosen from a venire in which there is no systematic racial exclusion. If the jury consists of 12 persons. FAIR CONDUCT BY PROSECUTOR ■ A prosecutor has the obligation to disclose to the defendant all exculpatory material known to or in the possession of the prosecutor's office. PUBLIC TRIAL ■ Even if both the prosecutor and defendant want a private trial.MicroMash MBE In Brief: Criminal Law Bar Exam Alerts 11 ■ The defendant has been deprived of effective assistance of counsel if her attorney has a conflict of interest because she is also representing a codefendant. 4. If the jury consists of only six persons. examine the witness at a pretrial hearing and there is a valid excuse for the witness' absence from the trial. Neither the defendant nor the prosecutor may systematically exclude individuals of one race from the jury by peremptory challenges. FAIR TRIAL 1. . the verdict must be unanimous.

SENTENCING ■ A defendant's criminal record is admissible after the verdict. for purposes of deciding the appropriate sentence. DOUBLE JEOPARDY ■ Jeopardy attaches in a criminal jury trial when the jury is sworn. ■ The prosecution can only appeal a judgment if a victory for the prosecution will not result in a retrial. 7. the state can place upon the defendant the obligation to plead affirmative defenses and prove them by a preponderance of the evidence. However. . RETRIAL ■ The appellate court may constitutionally order a new trial if the verdict is against the weight of the evidence. COLLATERAL ESTOPPEL • If issues are litigated in one criminal case between the prosecution and the defendant. 8. AFFIRMATIVE DEFENSES ■ The prosecution must prove all elements of the offense beyond a reasonable doubt. and in a jurywaived trial when the first witness begins to testify. • Double jeopardy does not apply when the judge declares a mistrial to benefit the defendant or the appellate court orders a new trial as the result of the defendant's appeal. they cannot be relitigated in a separate criminal case between the same parties. 9.12 MicroMash MBE In Brief: Criminal Law Bar Exam Alerts 6. F.

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8. 5. 4. MODE AND ORDER 4 4 5 5 D. 2. 3. INTRODUCTION OF EVIDENCE 1. 4. 6. 5. 1. 3. 3. 2. 5. 7. Requirement Of Personal Knowledge Refreshing Recollection Objections And Offers Of Proof Lay Opinions Competency Of Witnesses Judicial Notice Roles Of Judge And Jury Limited Admissibility Conclusive Presumptions Presumptions Of Fact Presumption Of Innocence True Or Rebuttable Presumptions Legislatively Created Presumptions Control By The Court Form Of Questions. 4. PRESENTATION OF EVIDENCE A. 2. Leading Questions. PRESUMPTIONS 4 4 4 4 4 4 C. 2. 1. 3. 1.MicroMash ® BAR REVIEW MBE IN BRIEF EVIDENCE Table of Contents I. IMPEACHMENT 5 6 6 6 7 7 . And Narrative Testimony Exclusion Of Witnesses Prior Inconsistent Statements Bias Conviction Of A Crime Specific Instances Of Conduct Character For Truthfulness 1 1 1 1 1 2 2 2 3 3 B.

Relevancy Counterweights To Relevancy Method Of Authentication Voice Identification Self-Authentication Character In Issue Character Not Directly In Issue Methods Of Proving Character Other Crimes Habit. 11 11 12 12 III. Remember. Statement Of Rule 13 13 . 2. RELEVANCY AND REASONS FOR EXCLUDING RELEVANT EVIDENCE 8 A. 3. 7. 3. CHARACTER AND RELATED CONCEPTS 1. 5. ATTORNEY CLIENT AND WORK PRODUCT 1. PROCEEDINGS TO WHICH EVIDENCE RULES APPLY 8 II. Custom. DEMONSTRATIVE EVIDENCE 1. EXPERT WITNESSES AND SCIENTIFIC EVIDENCE 1. Inability To Observe. 2. 3. 4. AUTHENTICATION 1. CONCEPT OF PROBATIVE VALUE 1. PRIVILEGES AND OTHER POLICY EXCLUSIONS A. 2. Right Of Spouse To Refuse To Testify In Criminal Cases Right To Keep Confidential Communications Out Of Evidence - 12 12 12 12 B. Or Relate Accurately Contradiction Impeachment Of The Hearsay Declarant Rehabilitation 7 7 7 7 E.6. 9 9 9 10 10 10 10 D. And Routine Practice Similar Happenings And Transactions Expert Witnesses Experimental And Scientific Evidence Real Evidence Demeanor And Views Sound And Picture Recordings 8 8 8 B. 2. 11 11 11 E. 2. 9. INTERSPOUSAL PRIVILEGE 1. 8. 6. 8 8 9 9 C. 2.

Statement Of Rule Exceptions Medical Payments Settlements With Third Parties Criminal Plea Bargaining 16 17 17 17 17 I. RECORDINGS. 6. 1. Communications That Are Protected Communications Between Lawyer And Subordinate Eavesdroppers When A Communication Is Confidential Client Is Holder Of The Privilege Exceptions To. REQUIREMENT OF AN ORIGINAL 1. 2. PAST SEXUAL CONDUCT 17 IV. 6. 4. 4. 5. The Privilege Work Product - 13 13 13 13 13 13 13 C. 5. 5. 3. 8. 3. INSURANCE COVERAGE G. H. SELF INCRIMINATING TESTIMONY 1. 7. 2. PLEA 16 NEGOTIATIONS 1. 2. OTHER PRIVILEGES 16 16 16 16 16 16 16 F. 3. 2. 2. WRITINGS. And Termination Of. Rule Applies When Contents Must Be Proven Original Document 18 18 18 18 iii . AND PHOTOGRAPHS A.2. SUBSEQUENT SAFETY MEASURES 16 16 COMPROMISE. Witness Privilege Privilege Of Accused Priest-Penitent Required Reports Vote Accountant-Client Newsperson Sources Government Secrets 15 15 15 E. PAYMENT OF MEDICAL EXPENSES. PHYSICIAN/PSYCHOTHERAPIST PATIENT PRIVILEGE Physician-Patient Privilege Psychotherapist-Patient Privilege - 14 14 14 D. 1. 4.

Degrees Of Secondary Evidence 18 B. D. DEFINITION OF HEARSAY 1. SUMMARIES COMPLETENESS RULE 18 19 V. STATEMENTS AGAINST INTEREST EXCEPTION K. 4. Dying Declaration Vital Statistics And Family History Ancient Documents Market Tabulations Residual Exception 23 23 23 23 23 23 23 iv . Former Testimony Depositions 3. OTHER EXCEPTIONS 1. 2.3. 5. E. EXCITED UTTERANCES AND STATEMENTS OF PRESENT 21 SENSE IMPRESSIONS C. C. OR PHYSICAL 21 CONDITION STATEMENTS FOR THE PURPOSE OF DIAGNOSIS OR 21 TREATMENT PAST RECOLLECTION RECORDED BUSINESS RECORDS PUBLIC RECORDS LEARNED TREATISES DEPOSITIONS Unavailability As A Requirement 1. Statement Out-Of-Court Statements That Are Not Hearsay Admissions Multiple Hearsay 19 19 19 19 20 21 B. 21 22 22 22 22 22 22 22 I. G. THE PRIOR RECORDED TESTIMONY EXCEPTION. 3. STATEMENTS OF MENTAL. 3. 2. EMOTIONAL. J. 4. H. F. HEARSAY AND CIRCUMSTANCES OF ITS ADMISSIBILITY A. 2.

Refreshing Recollection When the memory of a witness on a subject is exhausted. and relevant portions thereof may be admitted into evidence. A witness may also refresh his memory by reference to a writing. Objections 1) Timeliness An objection must be made as soon as opposing counsel knows she has grounds to object. 4) Probative worth Evidence admitted without objection. the examiner can attempt to refresh it by calling particular attention to some fact or event. 3) Waiver A party can waive grounds for objecting by introducing similar inadmissible evidence himself. any document so used before taking the stand. 3. the party must make an offer of proof so that the appellate court can effectively review the trial judge's .EVIDENCE I. Requirement Of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that she has personal knowledge of the matter. 2) Specificity The objection must delineate the specific ground for objection unless the specific ground is obvious from the context. The testimony of the witness herself may be used to prove that personal knowledge. 2. Any document so used while on the stand. is entitled to its full probative worth. even though inadmissible under an exclusionary rule. b. PRESENTATION OF EVIDENCE A. Hearsay comes within this rule only insofar as the witness must have personal knowledge of the statement. INTRODUCTION OF EVIDENCE 1. Offer of proof If evidence offered by a party is excluded by a trial judge. may be examined by opposing counsel for purposes of cross-examination. or. Objections And Offers Of Proof a. in the discretion of the judge. The personal knowledge requirement does not apply to expert testimony.

the offer must be specific and give the court sufficient facts to determine the question of admissibility. Judicial Notice a. take judicial notice of any fact which is either generally known within the territorial jurisdiction or is capable of ready and accurate determination by sources whose accuracy cannot be questioned. Lay Opinions A layperson may testify to inferences or give opinions if they are rationally based upon the perception of the witness and helpful to a clear understanding of his testimony or the determination of the facts in issue. as it does in diversity cases. An offer of proof is required only when the examiner can be expected to know what the answer to her question will be. It is not ordinarily required when a question asked on crossexamination is excluded. Lay opinions are not permissible on subjects reserved for expert opinions and on legal conclusions. or may of its own motion. the trial judge.2 MicroMash MBE In Brief: Evidence actions. Competency Of Witnesses Every person is competent to be a witness except: • • • • • a witness who would be incompetent under state law if state law controls. except for an expert witness. Adjudicative facts A court must upon request. The offer of proof serves the additional purpose of informing the trial judge about the testimony. a juror. Thus. of the expected content of the excluded evidence. The law of sister states and foreign countries will be noticed if there is statutory authorization. An offer of proof is merely an explanation read into the record. allowing her an additional chance to pass on its admissibility. and when she is interrogating a friendly witness on crossexamination. When required. The judge's personal knowledge of the fact is irrelevant to this determination. an offer of proof is required when counsel is examining her own witness on direct examination. a witness who lacks personal knowledge. 6. . Federal Rule of Evidence 103(a)(2) requires such an offer of proof unless the substance of the offer was apparent from the context of the questions asked. 5. a witness who cannot understand that she must tell the truth. b. Judicial notice of law A court will judicially notice the law of a state in which it is sitting and federal law. 4. out of the hearing of the jury.

an appellate court will uphold a judgment if the trial judge acted within his discretion. showing it to the trial judge and opposing counsel. Once judicial notice is taken. as long as there is sufficient evidence to find that preliminary question. The general principle behind this rule covering the offering of evidence and the objections thereto is that the trial judge is entitled to the assistance of counsel in making her rulings. and in other cases where justice requires. or if the evidentiary error did not affect the substantial rights of the parties and was therefore harmless. it is the obligation of the lawyer who lost the ruling to specify the limited basis for its admission. He is not bound by any rules of evidence (except privilege) in making preliminary findings. evidence is not admissible on the issue and. Preliminary questions of fact The jury decides preliminary questions of fact when the relevancy of other evidence is dependent upon such a finding. Limited Admissibility In some instances evidence will be admissible for one purpose and inadmissible for another purpose. Function of appeals court on evidentiary matters In addition to the limitations discussed above with respect to the proper preservation of an issue for appeal. the trial judge will be upheld upon appeal unless counsel specifies the . The accused may testify at a preliminary hearing without subjecting himself to cross-examination on all issues. Admitting evidence A party desiring to offer physical or documentary evidence does so by having it authenticated by a witness. If the trial judge rules adversely to either a request to admit such evidence or an objection to its admissibility. and then asking the judge to admit it. If counsel are not specific on either the admission or exclusion of evidence. b. Specifying reason for admissibility If the trial judge sustains a general objection. Hearings on preliminary matters must be out of the jury's hearing in all cases on the admissibility of confessions. the jury must accept the fact judicially noticed. The trial judge determines those preliminary questions of fact on which the applicability of exclusionary rules depends. Roles Of Judge And Jury a. the obligation is upon the opponent to object to the admissibility of the evidence. 7. except in criminal cases. a. 8.MicroMash MBE In Brief: Evidence 3 c. Oral evidence is offered by asking questions of a witness on the witness stand. Once the offering party has complied with these formalities. b. and the evidence is objectionable for any reason. Procedure Counsel is entitled to a hearing on the propriety of taking judicial notice. the trial judge's ruling will be upheld if it is right for any reason.

Legislatively Created Presumptions Legislatively created presumptions in criminal cases are unconstitutional unless the presumed fact is more likely than not to flow from the proven fact on which it is made to depend. True Or Rebuttable Presumptions A true or rebuttable presumption operates to shift the burden of production when the person having the benefit of the presumption introduces evidence of the basic facts necessary to bring the presumption into operation. Conclusive Presumptions Irrebuttable or conclusive presumptions are merely a different way of stating rules of substantive law which provide that proof of the first set of facts conclusively proves the second proposition. the artificial procedural effect of the presumption disappears. followed by the defendant's case. If she does offer evidence on the presumed fact. MODE AND ORDER 1. 3. Direct examination The scope of a witness' testimony on direct examination is limited to the matters which are relevant to the issues presented in the case. 4. 2. the order of presentation of the case and the order of the presentation of witnesses are controlled by the sound discretion of the trial court. but any inferences that can be drawn about the presumed fact from the existence of the basic fact may still be drawn.4 MicroMash MBE In Brief: Evidence limited ground for which he is offering the evidence. B. Control By The Court While there is a traditional order in which a case is presented (in which the plaintiff presents his affirmative case first. Presumptions Of Fact Presumptions of fact are rules holding that inferences which can be drawn from certain facts have enough probative value on a second issue that a verdict cannot be directed on that second issue if those facts are proven. a. C. followed by rebuttal). 5. and the trial judge improperly excludes the evidence offered for that limited purpose. then the presumed fact has likewise been proven. Presumption Of Innocence The presumption of innocence is another way of stating that in a criminal case the prosecution has the burden of proving all the facts necessary for a conviction beyond a reasonable doubt. and if the witness is called for . PRESUMPTIONS 1. If the basic facts are proven and the person against whom the presumption operates offers no evidence on the presumed fact.

where the witness' memory is exhausted. Leading Questions. Recrossexamination is limited to matters raised on redirect examination. IMPEACHMENT Any party. And Narrative Testimony Leading questions are those in which the examiner suggests in the question the answer which she desires. 4) Redirect and recross-examination On redirect examination. the court may permit inquiry into additional matters as if on direct examination.MicroMash MBE In Brief: Evidence 5 the purpose of impeaching another witness. except where the witness is the cross-examiner's own client or is closely allied with that client. Narrative testimony is permitted in the discretion of the trial judge. to cover preliminary matters. b. where the witness has a weak memory or is of tender age. counsel may inquire into matters raised in crossexamination and matters rehabilitating the credibility of the witness. 2) Improper form Even though leading questions are permissible on cross-examination. exclude all prospective witnesses from the trial. or contain more than one question. 3. Form Of Questions. testimony given on direct examination will be stricken if that right has been denied. can impeach a witness in one or more of the following ways. D. including the party calling her. a witness' testimony is limited to proper matters of impeachment discussed below. In its discretion. and may on his own motion. misleading. . or a person shown to be essential to a party. Cross-examination 1) Definition Cross-examination is defined as the examination commencing after the examination by the party calling the witness. except for a party. questions will be inadmissible if they are argumentative. 2. Exclusion Of Witnesses A judge must at the request of a party. an officer of a party. Because cross-examination is a fundamental right. Interrogation by leading questions is permissible on crossexamination. Leading questions are not allowed on direct examination except: • • • • where the witness is the party opponent or is hostile. 3) Scope of cross-examination Examination on cross-examination is limited to the subject matter of direct examination and matters affecting the credibility of the witness.

as long as the conviction is less than 10 years old. The court must admit a recent nonfraud felony conviction of any witness other than a criminal defendant unless the objecting party shows that the prejudicial effect of the impeachment substantially outweighs the probative value of the evidence. A witness must be asked about his bias before it can be proven by extrinsic evidence. Foundation required for use of extrinsic evidence No foundation is required to inquire about an inconsistent statement on crossexamination. then the witness must be afforded an opportunity to explain or deny it. Bias Evidence of bias is admissible to impeach credibility because it shows reasons why a witness might lie.6 MicroMash MBE In Brief: Evidence 1. they are not hearsay when used only for impeachment. The court may admit a recent conviction of a criminal defendant for any felony not involving fraud only if the impeaching party first shows that the probative value of the conviction outweighs its prejudicial effect on the accused. A conviction more than 10 years old can be admitted against any witness only if the impeaching party first shows that the probative value of the conviction substantially outweighs its prejudicial effect. Conviction Of A Crime The court must admit any conviction involving fraud (i. or if they were made under oath. c. or interests in the outcome of the litigation are common examples of bias. Such evidence is presented by asking the witness about the conviction. No hearsay problem if used only for impeachment Prior inconsistent statements are relevant for impeachment because the very fact that they were made casts doubt upon the veracity of the statement made on the stand.e. Prior Inconsistent Statements a. Inconsistency required To be admissible. b. such statements must be inconsistent with a statement made on the stand.. d. If the witness was pardoned because of . 3. dishonesty or false statement) against any witness. Extrinsic evidence on collateral matters inadmissible Extrinsic evidence of a prior inconsistent statement about a collateral matter is not admissible. Hatred. e. 2. or by the introduction of a certified copy of the conviction. love. When admissible substantively Such statements are admissible substantively when they come within an exception to the hearsay rule. but if extrinsic proof of the inconsistent statement is to be made. therefore. kinship.

7. Remember. Rehabilitation Once the credibility of a witness has been attacked. Extrinsic evidence of such conduct is not allowed. it may be rehabilitated by either party. is admissible only after the character of the witness for truthfulness has been attacked. or was given as a result of improper motive or . b. Inability To Observe. Specific Instances Of Conduct The judge in his discretion can permit inquiry on cross-examination into specific conduct that is probative of truthfulness or untruthfulness. 9. however. Contradiction Testimony by another witness that contradicts the testimony of an earlier witness impeaches the earlier witness. the out-of-court declarant can be impeached in the same way he could if he were a witness at the trial. or does not remember anything about the event. 4.MicroMash MBE In Brief: Evidence 7 a finding of innocence or because she has been rehabilitated and has not been convicted since then. and extrinsic evidence of a deficiency is admissible if the matter is not collateral. Character For Truthfulness A witness who demonstrates a knowledge of a witness' reputation in the community. On cross-examination. 5. the conviction may not be used to impeach. Impeachment Of The Hearsay Declarant If hearsay evidence is admissible. 6. Convictions of a crime while a juvenile are admissible in the discretion of the court against a witness who is not a defendant. It is not permissible when the testimony concerns a collateral matter. such a character witness may be asked about specific instances of conduct of the witness about whom she is testifying. 8. Evidence that a witness is truthful. good character can be shown. unless the trial judge in her discretion determines that the witness is a very important one and the contradiction will greatly affect her credibility. then his testimony is inadmissible. Good character If character has been attacked. A witness can be questioned about any deficiency in testimonial faculties on cross-examination. or who shows direct knowledge of a witness' character. may testify either to the reputation of another witness for truth and veracity or give her own opinion about that truth and veracity. a. Prior consistent statements If impeaching evidence has been introduced which implies that the testimony on the witness stand is a recent fabrication. Or Relate Accurately If a lay witness did not have any opportunity to observe the relevant event. Such impeachment is always permissible when it concerns a material fact.

whereas materiality adds the condition that the fact proven be of consequence in the lawsuit. CONCEPT OF PROBATIVE VALUE 1.8 MicroMash MBE In Brief: Evidence influence. or by considerations of undue delay. or needless presentation of cumulative evidence. c. AUTHENTICATION 1. they do not apply to those proceedings in which the court may act summarily and to proceedings under Title 11 of the United States Code. but the bias may not be justified. It can be authenticated by testimony of a witness who saw the document signed or who is familiar with the signature on the document. or by the introduction of an admittedly genuine specimen of the signer's signature. evidence will be inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice. the credibility of the impeachment witness may be impeached. and hearings before United States magistrates. proceedings for the issuance of arrest or seat warrants. 2. criminalsentencing proceedings. Impeaching the impeacher In limited instances. Relevancy Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. II. PROCEEDINGS TO WHICH EVIDENCE RULES APPLY The Federal Rules of Evidence govern proceedings in courts of the United States and district courts in the territories. E. grand jury proceedings. Except for the rules of privilege. d. hearings before bankruptcy judges. misleading the jury. proceedings to grant or revoke probation. It may also be authenticated circumstantially because it contains . the rules do not apply to preliminary questions of fact determined by the trial judge. and bail hearings. extradition proceedings. RELEVANCY AND REASONS FOR EXCLUDING RELEVANT EVIDENCE A. Counterweights To Relevancy Even though evidence passes the extremely liberal test of relevancy. confusion of the issues. Method Of Authentication A writing must be authenticated before it is admissible. prior consistent statements are admissible substantively as well as for impeachment purposes. The evidence standing alone need not be sufficient to warrant a finding on the issue. Bias Evidence of bias may be rebutted. waste of time. B. Relevancy deals with the ability of evidence to help prove or disprove a fact. However.

In rebuttal. In a civil case such evidence is admissible only if the alleged victim's reputation has been placed in controversy by the alleged victim. because it was over 20 years old and taken from a place of proper custody. d. In some instances. or the same character trait of the accused. Use in criminal cases The criminal defendant may introduce character evidence to show that he is not the type of person who would have committed the crime. or (b) if the witness dials an individual's number. Character Not Directly In Issue If character is not directly in issue but is offered to show that an individual acted in conformity with a specific trait. Character of the victim The criminal defendant may introduce evidence of the victim's relevant character traits. May not be used in civil cases Character evidence may not be introduced in civil cases unless character or reputation is directly in issue. provided they bear proper official indicia. CHARACTER AND RELATED CONCEPTS 1. and the prosecution may use character evidence only in rebuttal of the defendant's character evidence. b.MicroMash MBE In Brief: Evidence 9 information known only to the author. a. Character of witness Character evidence may be introduced concerning the truth and veracity of any witness. the prosecution can introduce evidence of the victim's character. and to show the peaceful character of a homicide victim if self-defense is raised. 3. c. and the person answering the phone identifies herself. Self-Authentication Various kinds of official documents are self-authenticating. it may be proven by specific instances of conduct as well as by reputation evidence and opinion evidence. Voice Identification A voice is authenticated either (a) if the witness recognizes it. . 2. Federal Rule of Evidence 412(a) prohibits the defendant in a rape case from using opinion or reputation evidence concerning the victim's past sexual behavior. or because it was in reply to an earlier document. Character In Issue When character is directly in issue. asks for that person. C. documents such as wills must be authenticated by testimony of the official witnesses. 2. Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. the following rules apply.

If evidence of other crimes is admissible. Contract dealings between the parties are admissible to aid in interpretation. . Prices Prices received for the sale of similar property are admissible on the issue of valuation. c. or unless it is relevant on some other issue in the lawsuit. may be proven to show circumstantially that the response at the time in issue was in accord with that habit. 6. preparation.. b. but a character witness may be asked about specific instances of conduct on crossexamination).e. Methods Of Proving Character Character may be proven by testimony of a witness who is familiar with the individual's reputation concerning that character trait. unless they are offered to show notice of a defective condition or to show causation in the case on trial. identity. it need not be proven by convictions of these crimes. It may not be proven by specific instances of conduct not material to the issues in the lawsuit. Other Crimes Evidence that the defendant has committed other crimes is inadmissible. knowledge. Prior accidents Prior accidents are not admissible. or absence of mistake. (i. or by the character witness' opinion of that individual with respect to that character trait. Similar lawsuits Evidence of similar lawsuits is not admissible unless the other lawsuit is connected in some special way with the lawsuit on trial. a regularized response to a specific type of situation. except when offered to prove some fact other than the character of the defendant. but dealings between a party and a third person are not. And Routine Practice Habit. intent. Similar Happenings And Transactions Evidence of similar happenings or transactions is not admissible unless it is extremely probative on the transaction in issue. such as motive. plan. when character is not directly in issue. 5. Routine practice in the field of business can be proven for the same purpose. Habit. a.10 MicroMash MBE In Brief: Evidence 3. Similar fraudulent transactions are admissible to prove absence of mistake in the case on trial. Habits of animals are also admissible to prove their conduct on specific occasions. Custom. opportunity. 4.

Real Evidence Real proof must be relevant and may be excluded even if relevant if it is highly prejudicial. Expert Witnesses a. such as the principle of the polygraph test. it is possible to introduce evidence of test results. c. The basis for an expert opinion need not be disclosed in advance of the opinion. but can be elicited on cross-examination. If the scientific principle is beyond dispute. 2. . Experimental And Scientific Evidence Experiments are admissible in the trial judge's discretion if they accurately reproduce the relevant event. EXPERT WITNESSES AND SCIENTIFIC EVIDENCE 1. or when the issue is the criminal defendant's mental state at the time of committing the crime. the evidence concerning the test is admissible only if counsel stipulate its admissibility. even if such data is not admissible in evidence. It must also be authenticated. and expert testimony is only necessary on its particular application. In addition. Even if the scientific procedure has not become generally accepted. Sources of knowledge for experts Many times an expert will have first-hand knowledge of the factual matters upon which his opinion is based. Scientific evidence introduced through a qualified expert is admissible as long as it is both relevant and reliable. it must be authenticated by showing a chain of custody from the time of the relevant event until trial. the court will take judicial notice of the principle. E. Fields of expert testimony A judge may permit expert testimony if it will assist the trier of fact to understand the evidence or determine a fact in issue. except when the question asks for a general conclusion in terms of inadequately explained legal criteria. Qualification An expert witness must be qualified in her field of testimony before she can give expert testimony.MicroMash MBE In Brief: Evidence 11 D. If the principle is in dispute and is likely to mislead the jury. If it is not distinctive or distinctively marked. provided that expert evidence is produced at the trial concerning the validity of the test procedure involved and that the trial judge finds sufficient evidence of its reliability. d. Scientific evidence falls into three categories. Ultimate issue Opinions are permitted on the ultimate issue. b. DEMONSTRATIVE EVIDENCE 1. he may use second-hand information if it is the type reasonably relied upon by experts in the particular field.

but if there is a dialogue. Communications Communications are words and actions designed to transmit information. 2. a. provided that the marriage relationship exists at the time of trial. III. 3. . Demeanor And Views A trier of fact can base her findings upon observation of the demeanor of witnesses and evidence deduced from observations made in the courtroom and from authorized views. The rule does not apply in a criminal case where the victim is the spouse or the children. e. Holder of the privilege The holder of the privilege is the spouse transmitting the information. Right To Keep Confidential Communications Out Of Evidence A spouse also has the right to prevent his or her spouse from testifying to confidential communications made during the marriage. Exceptions The privilege does not apply in suits between spouses. except young children.12 MicroMash MBE In Brief: Evidence 2. b. Confidential The presence of third parties. Waiver The privilege is waived if the holder makes the subject matter of the communication public. Sound And Picture Recordings Sound and picture recordings of a relevant event are admissible when properly authenticated. each spouse is the holder. Timing The privilege only applies to communications made while the parties are married. f. but do not include observations about physical conditions made by a spouse. PRIVILEGES AND OTHER POLICY EXCLUSIONS A. c. Right Of Spouse To Refuse To Testify In Criminal Cases The spouse of a criminal defendant has the right to refuse to testify. d. destroys the confidential nature of the communication. INTERSPOUSAL PRIVILEGE 1.

Eavesdroppers Under the modern approach.MicroMash MBE In Brief: Evidence 13 g. ATTORNEY CLIENT AND WORK PRODUCT - 1. Death does not terminate the attorney-client privilege. and preexisting documents are not. The attorney must claim the privilege unless the client waives it or authorizes her to waive it. Publication of the matter communicated to the lawyer or testimony by the client concerning the conversation with the lawyer will waive the privilege. Statement Of Rule Confidential communications between a client and lawyer consulted in a professional capacity are privileged at the option of the client. 3. Client Is Holder Of The Privilege The client is the holder of the privilege and can waive it. The Privilege The privilege does not apply when the purpose of the communication is to plan or perpetrate a crime or fraud. 8. an eavesdropper cannot testify to privileged lawyer-client communications. Eavesdroppers While the earlier rule was that an eavesdropper is entitled to testify concerning confidential marital communications. observations of physical conditions made by the lawyer. 4. but may not be claimed by anyone in a will contest. Work Product A qualified immunity protects from discovery materials prepared for litigation. 6. there is a growing trend toward excluding such testimony. Communications Between Lawyer And Subordinate The privilege also extends to communications made to the lawyer by his agent in preparation for a lawsuit. Communications made in the presence of another client are privileged in a suit against a third person. Communications from the lawyer to the client are also privileged. B. 2. It may be claimed by the client's executor. Federal Rule of Civil Procedure 26(b)(3) states: "A party may obtain discovery of documents and tangible things otherwise discoverable.. And Termination Of. 5. Exceptions To. but the fact of representation. The client need not hire the lawyer or pay a fee. When A Communication Is Confidential The presence of third parties necessary for the conduct of the lawyer's business does not destroy the confidential nature of the communication. Communications That Are Protected Both written and oral communications to the lawyer are privileged. 7. but they are not privileged when one such client is suing the other.and prepared in anticipation of litigation ..

g. The confidential nature of the communications or observations is not destroyed by the presence of third persons necessary to the performance of the physician's duties. In contrast. a witness who is an employee of the defendant may be hostile toward a discovering party who seeks a statement. insurer. 2. investigators or insurers. if a witness is dead or his memory is faulty.. the court will consider the cost of otherwise obtaining the material. e. Absolute immunity from discovery protects "the mental impressions. The work-product immunity now extends to persons other than the attorney who are representing a party. PHYSICIAN/PSYCHOTHERAPIST-PATIENT PRIVILEGE 1. and a "substantial equivalent" may therefore be unobtainable. The court reasoned that effective psychotherapy depends upon an atmosphere of confidence and trust.. indemnitor. conclusions. documents prepared in the regular course of business are not within the work-product immunity. and the likelihood that a "substantial equivalent" cannot be obtained (e. Material prepared in anticipation of one suit should also have qualified immunity in a later suit. the document must have been prepared "in anticipation of litigation". Physician-Patient Privilege The physician-patient privilege is a statutory privilege by which the patient can prevent the disclosure of confidential communications made to a physician. consultant. surety. 501. an adversary can use interrogatories or depositions to discover the existence or nonexistence of the documents. In determining whether "undue hardship" exists. the financial resources of the party seeking it. opinions or legal theories" of an attorney or other representative of a party concerning the litigation. Evid. The immunity protects only the documents or things themselves. Discovery of work-product information may be allowed if it is otherwise unobtainable. the evidentiary benefit of compelling disclosure would be modest.g. However. C. The policy underlying the "work product" immunity is the necessity for the lawyer to investigate all facets of the case and develop his theories without fear of having to disclose his strategies or information that is unfavorable to his client. e. or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. and thus a transcript of his original statement to his employer's attorney might not be immune).14 MicroMash MBE In Brief: Evidence or for trial by or for another party or by or for that other party's representative (including his attorney. Psychotherapist-Patient Privilege The United States Supreme Court has recognized the psychotherapist-patient privilege. and the disclosure of observations made by her. The possibility of compelled disclosure would destroy that confidence and trust. The patient- . R.g. The privilege is waived if the patient introduces evidence on her physical condition or sues the physician." (Emphasis added). Conversations between a patient and the therapist and notes taken during the counseling session are protected from compelled disclosure under Fed..

2. It can be claimed for activities that are a crime in another jurisdiction.INCRIMINATING TESTIMONY The privilege against self-incrimination is a constitutional privilege in two parts: the witness privilege and the privilege of a criminal defendant not to testify. except when there is a legal requirement that the records be kept. Loss of social status or humiliation is not a ground for claiming the privilege. Privilege Of Accused The accused in a criminal proceeding has the right to refuse to be a witness. Waiver A witness who voluntarily testifies and discloses substantial information about a subject can be required to testify further about the same subject matter. b. if there is a serious threat of harm to the patient or others that can only be averted by disclosure by the psychotherapist. but also with licensed social workers in the course of psychotherapy. Witness Privilege a. Courts will not balance the relative importance of the patient's need for privacy against the evidentiary need for the disclosure of the information. c. but only by natural persons who claim that the answer would incriminate them. Except in the Miranda custodial-interrogation situation. Immunity granted in one jurisdiction prevents use of the testimony or its derivatives to prosecute in a second jurisdiction. The privilege. give fingerprints. he waives his privilege against self-incrimination as to his credibility and matters within the scope of direct examination. try on clothes. Immunity The government can compel a witness to give an answer if it gives him immunity that prevents the prosecution from using the answer or any evidence derived therefrom in any future trial. The privilege may not be claimed for a crime that is clearly barred by the statute of limitations. a person has no right to be warned of her privilege against self-incrimination. however. the privilege applies.MicroMash MBE In Brief: Evidence 15 psychotherapist privilege applies not only to conversations with psychiatrists and psychologists. If the accused voluntarily takes the stand. is testimonial. The accused may be required to stand up. however. This right attaches only when formal legal proceedings have been commenced against him. including legislative investigations. . if a responsive answer could possibly lead to evidence of a crime. A witness can also claim the privilege and refuse to produce documents that are summoned. A witness may refuse to answer. and give handwriting and voice samples. They cannot claim the privilege on the ground that the answer would incriminate a third party. 1. However. D. The prosecution may not comment on the failure of the accused to testify. SELF . the privilege will not apply. If the conversation is between a patient and a psychotherapist. Applicability The witness privilege is available in all types of proceedings.

Conversations that are part of the settlement process are likewise . 6. Statement Of Rule Offers to settle or compromise a claim that is in dispute as to either validity or amount are inadmissible. Required Reports Reports required to be filed with government agencies. PAYMENT OF MEDICAL EXPENSES. Priest-Penitent The priest-penitent privilege is law in most states. G. but there is no such federal privilege. and his testimony is not necessary to a fair determination of the case. If the government exercises one of its privileges and is a party to the suit. Accountant-Client A few states recognize a privilege for confidential communications between an accountant and her client. 2.16 MicroMash MBE In Brief: Evidence E. PLEA NEGOTIATIONS 1. except income tax returns. F. OTHER PRIVILEGES 1. Vote The political vote is privileged. INSURANCE COVERAGE Evidence that the defendant is or is not covered by liability insurance is not admissible to prove that the defendant acted negligently or otherwise wrongfully. it must suffer adverse judgment. 5. H. and its tenor need not be disclosed. 4. It requires a confidential communication to a member of the clergy for the purpose of obtaining spiritual advice. Government Secrets The government has a right to refuse to disclose secret information concerning national defense or international relations and official information that is protected from disclosure under freedom-of-information acts. 3. SUBSEQUENT SAFETY MEASURES Measures taken after an event which would have made the event less likely to occur if taken previously are not admissible to prove negligence or culpable conduct in connection with the event. COMPROMISE. are privileged if the statute confers such privilege. Newsperson Sources There is no constitutional privilege for a newsperson to refuse to disclose sources. but are admissible to show control of premises or to show the feasibility of precautionary measures if they are in issue. The government likewise has the right to refuse to disclose the identity of an informer. provided that he is not known to those who would harm him.

In civil cases. I. or evidence offered to prove any alleged victim's sexual predisposition. 4. Settlements With Third Parties Settlements with a third party are inadmissible unless offered to show something other than the defendant's liability. the exclusion of which would violate the constitutional rights of the defendant. is also admissible. PAST SEXUAL CONDUCT Federal Rule of Evidence 412 excludes in civil and criminal proceedings involving alleged sexual misconduct evidence offered to prove that any alleged victim engaged in other sexual behavior. Criminal Plea Bargaining In criminal cases. Any party intending to offer evidence of an alleged victim's other sexual behavior must file a written motion at least 14 days before trial. Evidence of the alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. statements made by a potential criminal defendant to a victim in an attempt to buy off criminal liability are not protected. Medical Payments The fact of payment of. unless the trial judge for good cause waives this requirement. 5. evidence of specific instances of sexual behavior by the alleged victim is admissible if offered to prove that a person other than the accused was the source of semen. injury. Exceptions Such offers are admissible when there is no dispute. . with the following exceptions. The record of that hearing is sealed unless the judge orders otherwise. 2. Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct is admissible if offered by the accused to prove consent. or when they are offered to show something other than liability. Offers to buy off criminal liability by payment of civil damages are admissible in a subsequent criminal case. a party's medical expenses is inadmissible. and the judge must hold an in camera hearing at which the alleged victim and the other parties have a right to be heard. However. or an offer to pay. the evidence of past sexual behavior must be otherwise admissible and its probative value must substantially outweigh the danger of harm to any victim and of unfair prejudice to any party. or other physical evidence.MicroMash MBE In Brief: Evidence 17 inadmissible. conversations in connection with plea bargaining and withdrawal of guilty pleas are excluded. Evidence. 3. In criminal cases.

Rule Applies When Contents Must Be Proven The rule only applies when the contents of a document are to be proven. 1. when the document is a certified copy of an official document. a deposition. Function of judge and jury Except when the existence of a document is an issue in a lawsuit. RECORDINGS. or photographs that cannot conveniently be examined in court may be presented in the form of a chart. WRITINGS. and when the contents of the document are collateral to the issues in the lawsuit. a. b. when the original is lost and there has been a diligent search. or calculation. there must be excuse for nonproduction of both. Excuse for nonproduction of original The production of the original is excused when it is in the hands of a party opponent. 3. Degrees Of Secondary Evidence If there is excuse for nonproduction of the original. shall be made available for examination or copying. Duplicate A duplicate is a photographic reproduction of the original and is admissible to the same extent as the original. a. SUMMARIES The contents of voluminous writings. B. The originals. or both.18 MicroMash MBE In Brief: Evidence IV. or if it would be unfair to admit the duplicate. or when it has been destroyed by someone other than the party seeking to offer it. the original writing is required unless production of the original is excused. and a notice to produce has been given but not complied with. AND PHOTOGRAPHS A. or duplicates. recordings. 2. not when an individual is testifying about observations that she memorialized in a document. the admissibility of secondary evidence is a preliminary question for the trial judge. or in another writing. any degree of secondary evidence is admissible. summary. If there are duplicate originals. Admission by opponent Secondary evidence is also admissible if the opponent admits the contents of a document in his testimony. unless there is a genuine question of the authenticity of the original. by other . Original Document The original document is that writing which controls the rights of the parties under substantive law. when the original is in the hands of a third party and is not subject to summons. b. REQUIREMENT OF AN ORIGINAL If the content of a writing is to be proven.

testimony by a witness is more reliable than an out-of-court statement because it is under oath. 2. and it does not require that such parts of a document meet a hearsay test or any other test. and are not hearsay. The judge may order that they be produced in court. Words or conduct are assertive when the person making them wants the hearer or observer to believe something is true because he said it. Statement A "statement" is either an oral or a written assertion. HEARSAY AND CIRCUMSTANCES OF ITS ADMISSIBILITY A. or nonverbal conduct if it is intended as an assertion. Conduct that was not intended to be assertive when made but which is offered to show the opinion of the actor at the time of the conduct is not a "statement" as that term is defined in the hearsay rule. R. known as the completeness rule. COMPLETENESS RULE Federal Rule of Evidence 106. 1006. It can happen that the document introduced by the opponent is inadmissible under these rules of evidence. most important of all.MicroMash MBE In Brief: Evidence 19 parties at a reasonable time and place. or part of a document. 106 permits the introduction of other evidence relating to the inadmissible document as long as the fairness test is met. 1. and statements which are contemporaneous with physical acts and which give the acts a legal effect. . Fed. are not offered for their truth. R. Statements having a legal significance Statements that have legal significance independent of their truth. a. DEFINITION OF HEARSAY "Hearsay" is a statement other than one made while testifying at the hearing to prove the truth of the matter asserted. Evid. Fed. C. Evid. The purpose of the hearsay rule is to bring before the trier of fact the most reliable evidence possible. and. V. Out-Of-Court Statements That Are Not Hearsay Out-of-court statements are not hearsay when they are offered for purposes other than the truth contained in them. any other part of the document or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. The entire test of its admissibility is whether it is fair to introduce it and consider it contemporaneously with some other document being introduced by the opponent. In most instances. Nevertheless. the witness is subject to crossexamination. This rule does not require that the parts of a document to be introduced be relevant to the issues being tried. the jury can observe the demeanor of the witness. permits a party to introduce into evidence at the same time that her opponent introduces a document.

a. statements made by others that a party has adopted through his actions are admissions. A party may adopt a statement without knowing its precise nature if he indicates that its author is a reliable person. unless they are offered to rebut the inference that the statement on the stand was a recent contrivance or the product of improper influence. b. Vicarious admissions Statements made by an authorized agent or a partner are admissible. the individual possessed the required knowledge. This most commonly occurs when a party remains silent when a statement is made in his presence which he would deny if it were false. Evidence of prior identification made by an eyewitness who testifies at trial is also excluded from the definition of hearsay. . c. Admissions An out-of-court statement of a party is admissible. Such statements are not admissible when a defendant is entitled to his Miranda rights. Statements from which an inference about the state of mind of the speaker can be drawn are not hearsay when offered on the issue of her state of mind. 3. Adoptive admissions Likewise. and even though he had no personal knowledge of the facts contained in it.20 MicroMash MBE In Brief: Evidence b. If knowledge of an individual must be proven. Out-of-court statements of witnesses Out-of-court statements of witnesses testifying at a trial are admissible to impeach credibility if they are inconsistent with testimony given on the stand. a statement made in her presence containing the requisite information is not hearsay when offered to show that as a result of the statement. because they are offered only to show that a person who says two different things about a situation should not be believed. c. An out-of-court statement that is proven false is not hearsay when offered to prove that similar statements made on the stand are also false. Outof-court statements that are consistent with in-court testimony are inadmissible. Statement of party In addition to the statement of a party. Statements offered circumstantially Statements are not hearsay if offered circumstantially. Despite the fact that the witness is on the stand and can be cross-examined. such statements are not admissible substantively unless they were made under oath. even though it was in his interest at the time he made it. her actions that are inconsistent with the position she is taking in a case are admissible against her.

An adverse party can require that the document be admitted. If he does not. Statements of present intention are admissible to show future intention and future actions based on that intention. Even if there is no exciting event. E. . OR PHYSICAL CONDITION Statements of present physical or mental or emotional condition are admissible if offered to prove that condition. that she recorded her memory at the time of the event. even if the out-of-court declarant is available. B. made of the personal knowledge of the out-of-court declarant. Statement of an employee Even though an employee is not authorized to speak for her employer. her statements made while an employee that involve matters concerning her employment are admissible. However. EMOTIONAL. C. EXCITED UTTERANCES AND STATEMENTS OF PRESENT SENSE IMPRESSIONS A statement made by a person while under the stress of an exciting event concerning that event. then the statement is totem-pole hearsay and is not admissible unless each layer of hearsay is supported by an exception to the hearsay rule. a present sense impression (a statement made by a declarant while viewing an event) is admissible. Statements of a conspirator Statements made by a conspirator are admissions against co-conspirators if made in furtherance of the conspiracy and during the course of the conspiracy. STATEMENTS OF MENTAL. STATEMENTS FOR THE PURPOSE OF DIAGNOSIS OR TREATMENT Statements of past physical or mental condition are admissible when made for the purpose of diagnosis or treatment.MicroMash MBE In Brief: Evidence 21 d. PAST RECOLLECTION RECORDED If a witness on the stand testifies that she once had a memory of an event. the writing must satisfy the admissibility requirements of a writing. e. 4. A statement made to a doctor for the purpose of having the doctor make a diagnosis and testify about it is admissible. but can be made to any person who might render treatment. The statement need not be made to a physician. Multiple Hearsay A statement of an out-of-court declarant that is admissible under an exception to the hearsay rule must be one where the out-of-court declarant has personal knowledge of the facts contained in the statement. and that she no longer has any memory. is admissible. then the record of the past memory may be read to the jury but the writing itself is not admissible by its proponent. in that it must be authenticated and must not violate the Best-Evidence Rule. D.

The nonoccurrence of an event can be proven by the absence of an entry in an official record. Business records are also admissible to show the nonoccurrence of an event if it can be shown that the event. 3. A record is self-authenticating if it is certified to meet the requirement of the business records exception by a qualified person. since the statement in a deposition of a deponent who is on the . and records of an investigation made pursuant to law are admissible. are not admissible. The original record need not be produced. or cannot be required to attend by process or other reasonable means. A declarant is unavailable if she has successfully claimed a privilege. In civil cases. G. even though kept in the usual course of business.22 MicroMash MBE In Brief: Evidence F. records of observations which a public official has a duty to make. Unavailability As A Requirement The prior-recorded-testimony exception. 2. prior recorded testimony is admissible if the party against whom it is offered in the second hearing had interests which were similar to the party against whom it was offered in the prior hearing. is absent because of death or mental illness or infirmity. and a certified copy is admissible. Personal knowledge of the person who kept the record is not required. the declaration against interest exception. H. but someone with personal knowledge must have transmitted the information in the usual course of his business. and the statement made under belief of impending death exception require that the out-ofcourt declarant be unavailable. Likewise. LEARNED TREATISES Learned treatises concerning a subject upon which an expert witness has testified are admissible if established as a reliable authority. any deposition may be used by any party for contradicting or impeaching the deponent's testimony as a witness or for any other purpose permitted by the Federal Rules of Evidence. Evidence of judgments of conviction are admissible to prove any fact necessary to sustain the judgment. BUSINESS RECORDS Records kept in the routine course of business are admissible despite the fact that the declarant is available. Relevant portions may be read to the jury. Records that were prepared for litigation. I. takes the stand and says she has no memory on the subject. would have appeared in the record. refuses to testify. Former Testimony The prior-recorded-testimony exception admits in both criminal and civil cases testimony of a witness in an earlier proceeding who is currently unavailable. Depositions A statement in a deposition is generally inadmissible as hearsay. PUBLIC RECORDS Records of the activity of a public agency. However. DEPOSITIONS 1. but the treatise itself is not admissible as an exhibit. if it had occurred. if he is testifying against the same party in both cases. THE PRIOR RECORDED TESTIMONY EXCEPTION.

or if (e) special circumstances make it desirable in the interests of justice to use the deposition. K. director. (c) infirm or imprisoned and unable to testify. Market Tabulations Tabulations of market-price quotations are admissible. a statement made by her that was contrary to the declarant's pecuniary or proprietary interest and which would likely subject her to criminal or tort liability. provided that it was against her interest at the time it was made.MicroMash MBE In Brief: Evidence 23 witness stand is made under oath. If the declarant is unavailable. 2. Dying Declaration A statement made by a person who believes his death is imminent concerning the cause of or circumstances surrounding that imminent death is admissible as an exception to the hearsay rule in civil cases where the declarant is unavailable and in criminal-homicide prosecutions. (b) more than 100 miles from the trial. and if the adverse party has been given notice of the intention to rely on this exception. Vital Statistics And Family History Records of vital statistics. or which would likely render invalid a claim which she might possess. Residual Exception The federal rules contain a residual exception which admits evidence on a material fact if it is more probative on that fact than any other evidence which can reasonably be procured. or other agent of an adverse corporate party is an admission and may be admitted for any purpose. 4. is admissible as an exception to the hearsay rule. STATEMENTS AGAINST INTEREST EXCEPTION When the out-of-court declarant is unavailable. If the statement is offered to exonerate a criminal defendant by showing that the out-of-court declarant committed the crime. 5. . J. The deposition of any witness (party or nonparty) may be used for any purpose if the deponent is (a) dead. her own statement concerning her personal history is admissible. (d) not obtainable by subpoena. 3. the evidence must be corroborated. Ancient Documents Documents more than 20 years old in proper custody come within the ancient-documents exception to the hearsay rule. a prior inconsistent statement in a deposition can be used as substantive evidence. records of religious organizations. OTHER EXCEPTIONS 1. if its admission serves the interests of justice. The deposition of an adverse party or of an officer. family records. and reputation concerning family history are admissible to prove family relationships.

24 MicroMash MBE In Brief: Evidence .

is read to the jury and must satisfy the requirements for admissibility of a writing. ■ On the other hand. The document itself. 3. The witness then testifies to what she remembers. past recollection recorded occurs when a witness has made a written record on a matter while her memory was fresh. OBJECTIONS AND OFFERS OF PROOF ■ An offer of proof is required only when an objection to a question is sustained.MicroMash ® MBE REVIEW BAR EXAM ALERTS AT A GLANCE - EVIDENCE I. if known. LAY OPINIONS ■ A layperson can testify in the form of opinion with respect to matters on which laypersons are competent to form opinions. FIRST HAND KNOWLEDGE ■ Every witness (except an expert witness and a witness testifying to admissible hearsay) must testify from first-hand knowledge. if the opinion is based . counsel must object to the admissibility of evidence at the time it is offered. PRESENTATION OF EVIDENCE A. ■ If a witness brings written documents with her while testifying. INTRODUCTION OF EVIDENCE 1. The party must state for the record what the answer to the question would be. 4. 2. The rules regarding hearsay and admissibility of writings are inapplicable. REFRESHING RECOLLECTION ■ Present memory refreshed occurs when the witness' memory is revived (e. which comes within a hearsay exception. ■ To preserve an issue for appeal. opposing counsel can examine them as a matter of right in the course of crossexamination. and her memory of that matter is exhausted and cannot be revived. by reference to a document)..g.

CROSS-EXAMINATION ■ If the opposing party is deprived of his opportunity to cross-examine a witness. ROLES OF JUDGE AND JURY ■ Hearsay evidence that would be inadmissible at trial is admissible before a judge who is hearing evidence on a preliminary question of fact. COMPETENCY OF WITNESSES ■ The Federal Rules of Evidence require that a federal court apply the state's rule on matters of competency of witnesses and privilege if state law provides the basis for decision in the federal court (as it would in diversity cases). 2. even if the layperson's opinion is based upon first-hand knowledge. or where the witness because of tender age or weak memory can .2 MicroMash MBE In Brief: Evidence Bar Exam Alerts upon personal knowledge and is helpful to an understanding of the testimony. C. testimony on redirect examination must relate to those matters asked on cross-examination. ■ If part of a document is admitted in evidence by one party. 7. where a witness' memory is exhausted. B. the party against whom the presumption operates must introduce evidence contradicting the presumed fact or face a directed verdict against him on that fact. 5. JUDICIAL NOTICE ■ A jury in a criminal case is not bound to take as true matters that have been judicially noticed. REDIRECT AND RECROSS-EXAMINATION ■ Generally. FORM OF QUESTIONS ■ Leading questions are not permitted on direct examination except: to cover preliminary matters. PRESUMPTIONS ■ If the party seeking the benefit of a presumption introduces evidence from which the jury can find the basic fact giving rise to the presumption. the opposing party has the right to introduce any other part of the same document which ought in fairness to be considered with the part already in evidence. 6. even if such evidence would otherwise be inadmissible. the remedy is to strike the direct examination. MODE AND ORDER 1. ■ A lay witness cannot testify on matters on which only experts are qualified to give opinions. where a witness is hostile. 3.

AND REHABILITATION 1.e. ■ An argumentative question (e. On cross-examination. but extrinsic evidence of such conduct cannot be introduced. IMPEACHMENT. usually inadmissible evidence (such as insurance coverage and other criminal convictions) is admissible. 4. ■ The character of a witness for truthfulness cannot be introduced until that character trait has been attacked. as long as the conviction is recent (i. one that starts "Don't you know that .. 5. ■ The court must admit any conviction involving dishonesty or false statement against any witness. .") is inadmissible even on cross-examination. less than ten years old). in which case it is admissible to prove the matter asserted. PRIOR BAD ACTS ■ Evidence of bad acts that show fraudulent conduct can be inquired into on cross-examination to impeach credibility. ■ The party proffering a witness can anticipate impeachment of the witness through the use of prior convictions by introducing the convictions against the witness on direct examination. CONTRADICTION. D.g. . 3.MicroMash MBE In Brief: Evidence Bar Exam Alerts 3 be examined only by leading questions. BIAS AND INTEREST ■ Unless the witness admits the facts relating to bias on cross-examination.. leading questions are permissible. . PRIOR CONVICTIONS ■ Prior convictions of a person can only be introduced to impeach credibility after that person has testified. extrinsic evidence can be introduced to prove bias. ■ Evidence of convictions for misdemeanors not involving dishonesty or false statement are always inadmissible to impeach credibility. ■ Extrinsic evidence of a prior inconsistent statement is inadmissible to impeach credibility unless the attention of the witness is called to the statement. 2. INCONSISTENT STATEMENTS AND CONDUCT ■ A prior inconsistent statement is admissible only to impeach unless it comes within an exception to the hearsay rule or it was given under oath. ■ If offered to prove bias. CHARACTER ■ Character can be attacked either by opinion evidence or by reputation evidence.

evidence of good character can only be presented if the witness' character has been attacked. The court must admit a recent conviction of a witness (other than the accused) for a nonfraud crime punishable by death or at least one year imprisonment unless the objecting party shows that the prejudicial effect of the impeachment substantially outweighs the probative value of the evidence. ■ A conviction more than ten years old can be admitted against any witness only if the impeaching party first shows that the probative value of the conviction substantially outweighs its prejudicial effect. REHABILITATION ■ A witness' credibility can be rehabilitated only with respect to the manner in which it has been attacked. For example. any witness may testify. A telephone voice of an individual is not authenticated if the witness does not recognize the voice and the person calls the witness and identifies herself. 8.4 MicroMash MBE In Brief: Evidence Bar Exam Alerts ■ The court may admit a recent conviction of the criminal defendant for a crime punishable by death or at least one year imprisonment only if the impeaching party first shows that the probative value of the conviction outweighs its prejudicial effect. ■ A photograph is admissible upon testimony that it fairly and accurately depicts a relevant event. . ■ A telephone voice of an individual is authenticated by testimony either that the witness recognized the voice. IMPEACHING HEARSAY DECLARANTS ■ An out-of-court declarant whose statement is admissible hearsay may be impeached in the same manner as an in-court witness. RELEVANCY A. AUTHENTICATION • Objects that do not have any identifying characteristics must be authenticated by proving a chain of custody from the point at which the object became relevant until the time of trial. or that the witness called the number listed to that individual and the call was answered by a person identifying herself as that individual. 6. The photographer is not required to so testify. CONTRADICTION ■ Extrinsic evidence cannot be used to contradict a witness on a collateral matter. II. 7.

■ Evidence of a character trait to show propensity to act in accordance with that trait is always inadmissible in a civil case. opportunity. Conviction of the other crime need not be proven. but a handwriting expert can. However. character traits of the criminal defendant that are inconsistent with the alleged criminal activity. or similar relevant facts in a criminal case. the prosecution can rebut with similar character evidence. C. ■ The defense in a criminal case can prove. ■ Except for the mental state of a criminal defendant.MicroMash MBE In Brief: Evidence Bar Exam Alerts 5 ■ A lay witness cannot testify to the genuineness of a signature solely on the basis of comparing the signature in question to an admittedly genuine signature. ■ Evidence of other crimes is admissible only to prove identity. even at a distant time. ■ Familiarity with a signature by a witness. ■ The prosecution cannot initiate proof of character in a criminal case. CHARACTER ■ Evidence of regularized conduct that can be characterized as a habit is admissible to prove conduct in accordance with that habit. After the defendant introduces such evidence. by opinion or reputation evidence. but instead may draw inferences from facts presented to him and may rely on the opinions of other experts if to do so is customary in the field of expertise. ■ An expert witness can be cross-examined about specific instances in his background that bear on his qualification as an expert. notice. Under those circumstances. ■ An expert witness need not testify from personal knowledge. is all that is required to authenticate the signature. beware of the question where a witness is asked a question calling for expert testimony and there is no indication that she has been qualified. motive. EXPERT TESTIMONY AND SCIENTIFIC EVIDENCE ■ It is unlikely that you will be given a multiple-choice question in which you must determine if a particular expert is qualified. an expert witness can give an opinion on the ultimate issue in a case. B. because qualification involves subjective value judgments made in the discretion of the trial judge. . except to prove the peaceful nature of the victim in a homicide case where the defendant has raised the defense of self-defense. plan. ■ Evidence of similar events or circumstances is not admissible to prove the relevant event unless the probative value is compelling. the question is inadmissible because a proper foundation for the testimony has not been laid.

■ The privilege applies even if the attorney is not in fact hired by the client. with distinct rules. communications in the presence of both clients and the lawyer are privileged in any suit with a third party. . ATTORNEY CLIENT COMMUNICATION - ■ The privilege only applies to confidential communications between a client and an attorney for the purpose of obtaining legal advice. B. The privilege with respect to such communications survives divorce. The judge may exclude demonstrative evidence as unduly inflammatory. ■ The presence of third parties reasonably necessary for either the attorney or the client to perform their duties does not destroy the confidentiality necessary for the privilege. With respect to this rule. but the defendant-spouse cannot keep the witness-spouse off the stand. married to each other. The presence of third parties capable of understanding the conversation destroys the confidentiality necessary for this spousal privilege. ■ The second rule applies to confidential communications between individuals who are at the time of the communication. SPOUSAL COMMUNICATION ■ There are two separate marital privileges. ■ The privilege is inapplicable if the client or a disciplinary body calls the attorney's conduct into question and the attorney must reveal the confidential communication to defend himself. Under the first. but are not privileged in a suit between the clients. DEMONSTRATIVE EVIDENCE ■ The judge has wide discretion in deciding whether and in what form to allow demonstrative evidence. the parties must be married at the time of trial. PRIVILEGES AND OTHER EXCLUSIONS A. ■ If two clients consult one lawyer. ■ The privilege is inapplicable if the purpose of the communication was to commit future fraud or future criminal conduct. a witness-spouse can refuse to testify in a criminal prosecution of the defendantspouse. D.6 MicroMash MBE In Brief: Evidence Bar Exam Alerts ■ Evidence of a scientific test that fairly represents a relevant event is admissible even if the opposing party had no notice of the test and did not participate in it. III. ■ The privilege applies even if the individual consulted is not an attorney. even if it is relevant. if the client reasonably believed that he was.

a newsperson's sources. and cannot be crossexamined in the preliminary hearing on matters beyond the scope of the preliminary hearing. C. include a priest-penitent privilege. and government secrets. AND PLEA NEGOTIATIONS • An offer to compromise a disputed claim and all statements made in such a context are not admissible to prove liability. handwriting. PHYSICIAN-PATIENT COMMUNICATION ■ The physician-patient privilege is a statutory privilege by which the patient can prevent the disclosure of confidential communications made to a physician. The privilege is waived if the patient introduces evidence on his physical condition. REMEDIAL MEASURES ■ Evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. PAYMENT OF MEDICAL EXPENSES. SELF INCRIMINATION - ■ The privilege against self-incrimination is a testimonial privilege and does not empower a defendant to refuse to turn over nontestimonial items such as bodily fluids. • Admissions of ownership for purposes of asserting standing in a hearing on a motion to suppress evidence are not admissible in the criminal trial. D. but is admissible to prove ownership or control. and the disclosure of observations made by him. ■ The privilege against self-incrimination (except for cases where the Miranda rule concerning confessions is applicable) operates prospectively. by granting use and derivative-use immunity. ■ A defendant who testifies on a preliminary matter in a criminal case does not waive his right to refuse to testify in the case itself. G. but a letter to an attorney seeking legal advice is privileged. OTHER PRIVILEGES ■ Other privileges. E. The confidential nature of the communications or observations is not destroyed by the presence of third persons necessary to the performance of the physician's duties. or voice samples.MicroMash MBE In Brief: Evidence Bar Exam Alerts 7 ■ Turning over preexisting documents to an attorney does not make them privileged. or sues the physician. a social worker-client privilege. F. ■ The government. and privileges not to disclose one's vote. and does not give a defendant the power to suppress a statement already made. recognized in some jurisdictions. COMPROMISE. . can compel testimony despite the privilege against self-incrimination.

however. HEARSAY AND ITS ADMISSIBILITY A. ■ An offer to pay or the payment of medical expenses is likewise not admissible to show liability. ■ An out-of-court statement is not hearsay if you do not have to believe the statement is true for it to be relevant in the lawsuit. an offer to pay for goods that were stolen) is admissible at a subsequent trial. ■ Out-of-court statements that are only used circumstantially — not to prove the truth of the matter asserted — are not hearsay. DEFINITION OF HEARSAY ■ Evidence that is hearsay and does not come within any hearsay exception is inadmissible. V. ■ Nonverbal conduct is hearsay only if the person intended to make an assertive statement by the conduct.8 MicroMash MBE In Brief: Evidence Bar Exam Alerts • An offer in compromise is admissible. Examples of this include . • An offer in compromise cannot qualify as such until the other party has made a claim so that a dispute exists. a statement made in connection with an offer to pay medical expenses is admissible. ■ If the criminal process has not begun. BEST EVIDENCE RULE • Secondary evidence used to prove a collateral matter is admissible despite the best evidence rule. PAST SEXUAL CONDUCT ■ Evidence of a rape victim's sexual conduct is admissible only if: (1) it involves other sexual conduct with the alleged perpetrator or the alleged victim's sexual conduct with a person other than the defendant at the time of the alleged rape and (2) the judge determines that the probative value of the evidence outweighs its prejudicial effect. However. ■ The best evidence rule does not require the production of a written record of an event if the witness can testify about that event from first-hand knowledge. a statement made in an attempt to avoid criminal liability (for example. if it is accepted and the party is suing in contract to enforce it. ■ An offer to plea bargain and statements made in connection therewith are not admissible at a subsequent trial. H. IV.

). B. PRIOR INCONSISTENT STATEMENTS ■ If a witness testifies on the stand. This most commonly occurs when a party remains silent when a statement is made in his presence which he would deny if it were false. if the necessary requirements are met (the declarant is unavailable. (2) the declarant's lack of credibility. or (3) the meaning to the parties of the words involved in a statement. his actions that are inconsistent with the position he is taking in a case are admissible against him. STATEMENTS BY PARTY-OPPONENT ■ An out-of-court statement of a party is admissible. PRIOR STATEMENTS OF WITNESSES 1. PRIOR EYEWITNESS IDENTIFICATION • A prior identification by a witness is admissible if the witness is on the stand and testifying subject to cross-examination. 4.MicroMash MBE In Brief: Evidence Bar Exam Alerts 9 statements admitted to show: (1) the knowledge or state of mind of either the declarant or the recipient of the statement. even though it was in his interest at the time he made it. etc. 3. PRIOR CONSISTENT STATEMENTS • An out-of-court statement consistent with testimony on the witness stand is admissible substantively for the purpose of showing that the testimony given on the witness stand is not a recent contrivance when the opposing party has impeached credibility by use of a prior inconsistent statement. ■ An out-of-court statement consistent with testimony on the witness stand is admissible substantively to rebut an inference of bias if the consistent statement was made prior to the time that the reason for the bias occurred. a prior statement can be admissible under the former-testimony exception to the hearsay rule. when such is relevant to a case. it is only admissible to impeach. Such statements are not admissible when a defendant is entitled to his Miranda rights. and even though he had no personal knowledge of the facts contained in it. If the witness is not on the stand. ■ In addition to the statement of a party. 2. . A party may adopt a statement without knowing its precise nature if he indicates that its author is a reliable person. ■ If the prior inconsistent statement was not made under oath subject to the penalty of perjury. • Statements made by others that a party has adopted through his actions are admissions. a prior inconsistent statement by the witness given under oath subject to the penalty of perjury is admissible substantively to contradict the witness.

the passage in the learned treatise is admitted substantively. Statements of past physical condition are admissible only if made to a doctor or the like for purposes of medical diagnosis or treatment. a partner. DOCUMENTATION • The business record exception is not applicable to a business record made in preparation for a lawsuit. STATEMENTS BY AGENT ■ Statements made by an authorized agent. 6. D. C. STATEMENTS OF MENTAL. ■ Statements of present physical condition are admissible if made to anyone. PAST RECOLLECTION RECORDED ■ The declarant must be on the witness stand for either a past recollection recorded or a nonhearsay statement of prior identification to be admissible. ■ The statement of an employee while still employed concerning matters within the scope of her employment is an admission against her employer. but does not require an exciting event. but some expert must establish its qualifications. A conspiracy ends with the arrest of the co-conspirators. The opposing expert need not admit to the authority of the treatise. or a predecessor in title are admissible. EMOTIONAL. ■ A witness may testify to a present sense impression stated by the declarant without having been in a position to observe the facts related by the declarant. OR PHYSICAL CONDITION • The present-mental-state exception can be used to prove actions in accordance with that mental state. ■ Where the learned treatise exception applies. ADMISSIONS BY CO-CONSPIRATOR ■ Admissions made by one co-conspirator are only admissible against another co-conspirator if made during the course of the conspiracy. However. PRESENT SENSE IMPRESSIONS AND EXCITED UTTERANCES ■ A present sense impression must be more contemporaneous with the prompting event than an excited utterance. E. even if the employee was not specifically authorized to speak for the employer. ■ The learned treatise exception is available only after the opposing expert testifies and the proponent establishes the authority of the treatise.10 MicroMash MBE In Brief: Evidence Bar Exam Alerts 5. F. . the treatise itself cannot be admitted as an exhibit.

R. . the evidence must be corroborated. 804 hearsay exceptions. ■ A statement of impending death is admissible only in civil cases and criminalhomicide prosecutions. former testimony.MicroMash MBE In Brief: Evidence Bar Exam Alerts 11 G. provided that it was against her interest at the time that it was made. and statements of personal and family history require unavailability. Evid. ■ Family records and reputation concerning family history are admissible to prove family relationships. If the statement is offered to exonerate a criminal defendant by showing that the outof-court declarant committed the crime. or which would likely render invalid a claim which she might possess. ■ If prior testimony is offered in a case where the parties are not identical to the case in which the witness testified. ■ A witness who is available but refuses to answer questions or claims the privilege against self-incrimination is "unavailable" for purposes of the Fed. The death of the declarant is not required (only unavailability). STATEMENTS AGAINST INTEREST ■ When the out-of-court declarant is unavailable. is admissible as an exception to the hearsay rule. If the declarant is unavailable. his own statement concerning his personal history is admissible. OTHER HEARSAY EXCEPTIONS ■ Statements made in contemplation of impending death. the prior testimony is admissible only if the opposing attorney in the first trial had an opportunity and the same motive for cross-examination as the party against whom the statement is offered in the second trial. declarations against interest. H. a statement made by her which was contrary to the declarant's pecuniary or proprietary interest and which would likely subject her to criminal or tort liability. Other hearsay exceptions do not. ■ Documents more than 20 years old in proper custody come within the ancientdocuments exception to the hearsay rule.

12 MicroMash MBE In Brief: Evidence Bar Exam Alerts .

MicroMashe MBE IN BRIEF REAL PROPERTY .

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Creation. 4. 1. 5. 4. OWNERSHIP A. 3. 4. 2.MicroMash ® BAR REVIEW MBE IN BRIEF REAL PROPERTY Table of Contents I. 2. 2. FUTURE INTEREST 8 9 9 10 10 11 D. CONTENACY 5 5 5 7 7 C. 1. 1. Anticipatory Breach The Instrument 1 1 1 1 3 4 B. 5. Mitigation Of Damages. 2. PRESENT ESTATES: THE FEE SIMPLE 1. Termination Assignment And Subletting Rent Surrender. The Fee Simple Defeasible Fees Simple Life Estates Summary Of Basic Estates Tenancy In Common Joint Tenancy Tenancy By The Entirety Rights And Liabilities Of Cotenants Reversions Remainders Vested And Contingent Executory Interests Possibilities Of Reverter. 1. Power Of Termination Summary Of Future Interests Fitness And Suitability Of The Premises Types Of Holdings. 4. 3. 3. THE LAW OF LANDLORD AND TENANT 12 12 13 14 15 17 E. OWNERSHIP INTERESTS IN TRUSTS 18 18 . 3.

5. And Devisability Rules of Construction Gifts "To A And His Children" 18 18 19 19 20 F. Requirements For A Covenant To Run The Common Scheme Denial Of Relief In Equity Comparison Of Land-Use-Control Devices Table Showing Requirements For Running Of Covenants Easements Profits A Prendre Licenses Fixtures Scope And Extent Of Real Property Takings Zoning 26 26 26 28 28 28 29 B. REAL PROPERTY CONTRACTS A. SPECIAL PROBLEMS 1. 5. PROFITS. B. 2. The Enforceability Of A Purchase-And-Sale Agreement ii 43 43 . 3.2. 2. EASEMENTS. OTHER INTERESTS IN LAND 1. 34 34 35 D. 4. COVENANTS AT LAW AND IN EQUITY 1. 3. 2. 2. 6. 4. AND LICENSES 1. 39 39 40 III. 2. 2. Interests In Land Within The Statute Of Frauds Contracts Associated With Land Not Within The Statute Of Frauds - 42 42 43 43 CREATION AND CONSTRUCTION: THE STATUTE OF FRAUDS43 C. 3. Descendability. 21 21 24 25 26 II. 4. 29 30 33 34 C. THE PURCHASE AND SALE AGREEMENT 1. RIGHTS IN LAND A. TAKINGS AND ASPECTS OF ZONING 1. The Trustee Rights Of Beneficiaries Termination Of A Trust Charitable Trusts Implied Trusts The Rule Against Perpetuities Alienability. RELATIONSHIPS INCLUDED 1. 3.

TRANSFERS BY MORTGAGEE E.2. SOME SECURITY RELATIONSHIPS 49 49 50 50 50 C. 3. 2. 2. RELATIONSHIPS AFTER CONVEYANCE 48 48 48 IV. 1. 3. 5. 2. 3. 4. INTEREST BEFORE CONVEYANCE 47 The Effect Of An Enforceable Purchase And Sale Agreement — The 47 Doctrine Of Equitable Conversion 47 Earnest Money Deposits The Closing Effect Of Closing On Purchase-And-Sale Agreement Title Problems 47 F. DISCHARGE AND DEFENSES 51 51 iii . Implied Conditions Or Terms Fitness And Suitability Of The Premises Marketable Title Required Risk Of Loss Remedies For Breach Of Purchase-And-Sale Agreement 44 D. 1. 2. 3. 3. Equitable Mortgages Sale Leaseback Arrangements The Underlying Obligation Title And Lien Theories Of Mortgages Rights Between Mortgagor And Mortgagee Prior To Default Right To Redeem And Clogging The Equity Of Redemption 48 48 48 48 49 49 B. Mortgages (Including Deeds Of Trust) Land Contracts As A Security Device Absolute Deeds As Security. 4. REAL PROPERTY MORTGAGES A. 2. 1. 2. TRANSFERS BY THE MORTGAGOR 50 50 Conveyance Free And Clear Of The Mortgage 50 Conveyance Subject To The Mortgage Conveyance Subject To The Mortgage With The Grantee Assuming The 50 Debt 51 Novation 51 Due-On-Sale Clauses D. 4. TYPES OF SECURITY DEVICE 1. 1. 1. PERFORMANCE 45 45 45 46 46 E. 4.

1. 2. 4. 2. 2. 2. CONVEYANCING BY WILL 59 59 59 60 D. Time When Statute Begins To Run Requirement Of Continuous Possession Title Obtained By Adverse Possession Requirements Of A Valid Conveyance Necessity Of A Grantee Delivery Land Description And Boundaries Covenants Of Title Ademption Exoneration Lapse Types Of Priority Scope Of Coverage Special Problems 54 54 54 55 55 B. ADVERSE POSSESSION 1. 3. 5. 4. 3. 3. Types Of Foreclosure Rights Of Omitted Parties Deficiency And Surplus Statutory Right Of Redemption Deed In Lieu Of Foreclosure 52 52 52 53 53 54 V. 3. FORECLOSURE 1. 1. 1.F. 2. CONVEYANCE BY DEED 56 56 56 56 57 57 C. 3. PRIORITIES AND RECORDING 60 60 61 63 iv . 5. TITLES A.

2. in order to convey a fee simple inter vivos." or "provided that." "until. Defeasible Fees Simple a.) (a) Words of creation Any grant retaining a right of entry on a certain condition creates an estate subject to a condition subsequent. . The Fee Simple The fee simple absolute is the most complete property interest known to the law.REAL PROPERTY I.) A determinable estate is often created by the use of words such as "so long as. However. that an estate subject to a condition subsequent is created when the condition is preceded by a phrase such as "but if. that phrase is no longer required. Today. even without such a clear expression of the grantor's interest." 2) Estates subject to a condition subsequent If the grantor of an estate has the right to enter the property and take back the estate if a contingency comes to pass. a court may find. At common law. a simple conveyance "to B" will suffice." or "during. OWNERSHIP A." "on condition that. an actual physical entry on the land was required. Types of qualified estates 1) Determinable estates Any estate that automatically terminates and reverts to the grantor on the happening of a specified contingency is a determinable estate. (The grantor's retained interest is called a right of entry for condition broken or a power of termination. (The grantor's retained future interest is called a possibility of reverter. PRESENT ESTATES: THE FEE SIMPLE 1." Under the modern law of most states. It is an estate of infinite duration." (b) Action necessary to enter and re-take estate At common law. the grantor had to deed the property to the grantee "and his heirs. the estate is subject to a condition subsequent. most jurisdictions hold that filing an action to recover the land is sufficient to re-vest title in the grantor.

If any of the successive owners of the estate died without heirs. and so on. the property reverted to the grantor. usually by either converting it into a fee simple absolute. estates subject to an executory limitation differ from determinable estates and estates subject to a condition subsequent only in that the future interest lies in another grantee. . 2) Grantee's right of alienation Qualified estates are transferable. indefinitely.2 MicroMash MBE In Brief: Real Property 3) Estates subject to an executory limitation An estate is subject to an executory limitation if. a fee tail was created by a grant to the grantee "and the heirs of his body" or to "A. even if not listed in the new deed.) Executory limitations are distinguished from rights of entry and possibilities of reverter primarily because the Rule Against Perpetuities applies only to future interests in third parties." (b) Modern developments The fee tail has been eliminated in most states." Such a grant was called a "fee tail general. but the conditions imposed on the estate pass with the estate. Thus. a third party takes (or may take) the grantee's estate. on the happening of a contingency. but if A dies without issue. b. then to B and his heirs." A "fee tail special" was created if the grant restricted the subsequent takers to the heirs of the grantee by a particular spouse. When that heir died. The subsequent takers could also be limited to the male or female heirs of the grantee by use of the "fee tail male" or "fee tail female. the property again passed automatically to the heir's heir. not the grantor. 4) The fee tail The fee tail was an estate that passed automatically from generation to generation of the grantee's heirs. (The future interest held by the third party is called an executory interest. the property passed automatically to the appropriate heir (usually the grantee's oldest child). or by allowing the current holder to convey the estate as a fee simple absolute. Issues common to all qualified estates 1) Possessory rights of owners of qualified estates The owner of a qualified fee estate is not liable to the holder of the future interest for waste. and thus does not apply to possibilities of reverter or rights of entry. (a) Words of creation At common law. At the death of the grantee.

sell. 3) Rights in fixtures When personal property affixed by a life tenant can be removed without lasting damage to the real property. Many states also refuse to enforce a condition that would divest a fee owner of her estate on the basis of her alienation of the estate." This is no longer the rule today. 1) Right of possession and related rights of enjoyment The fundamental right of the life tenant is possession. in this example) by a conveyance "to A for the life of B. A life estate pur autre vie (a life estate "for the life of another") can be created in a grantee (A. or a court order.MicroMash MBE In Brief: Real Property 3 3) Impermissible conditions The contingency which terminates the estate cannot be within the control of the grantor. adverse possessors. and to sue for damages to her present possessory interest in the property. 2) Right of alienation Absent a specific prohibition. because such power would reduce the estate to an estate at will. Life Estates A life estate is an estate the duration of which is measured by the lifetime of a person. such a conveyance conveys the grantor's entire estate. life tenants (and nonfreehold tenants) have only limited rights in the property. The contingency cannot be a prohibition against ownership or use of the land by members of a particular race. the usual procedure is to value the life estate by use of actuarial tables in relation to the remainder interest." A life estate pur autre vie is also created when the holder of a life estate deeds his estate to another. a life estate was created by the conveyance "to A. a. Rights and obligations of the life tenant Unlike the holders of fees simple and fees tail. Incident to that right is the right to all rents and profits during the time she is entitled to possession. b. a mortgage foreclosure. Many states also void conditions that encourage divorce. and divide the proceeds accordingly. a life tenant may lease. Words of creation and types of life estates At common law. or mortgage his interest in the property. or discourage legitimate will contests. She is also entitled to evict the grantor. discourage marriage. 3. . trespassers. the personal representative of the deceased life tenant has a reasonable time after the life tenant's death to remove such property. and holders of future interests. 4) Rights in division of proceeds If the property is involuntarily converted by an eminent-domain taking.

to the extent that she receives actual or imputed income from the property. The modern law of waste makes a life tenant liable to the holder of the future interest for any reduction in the value of the future estate for which the life tenant is responsible. the life tenant is obligated to pay the interest due on the mortgage during his estate. The life tenant is not obligated to pay any principal due under the mortgage. 6) Obligation to pay taxes The life tenant is obligated to pay the ordinary. 4. annual real estate taxes assessed against the property. The life tenant is also obligated to pay her share of extraordinary real estate taxes assessed to pay for long-term public betterments. Summary Of Basic Estates Name of Interest FreeHold? Example of Words Necessary to Create Interest "to A and his heirs" (common law) "to A" (modem law) "to A and the heirs of his body" "to A" (common law) "to A for life" (modern law) "to A years" for 10 Subsequent Future Interest in Grantor None Subsequent Future Interest Held by Third Party None Fee Simple Yes Fee Tail Yes Reversion Remainder Life Estate Yes Reversion Remainder Term Years Periodic Tenancy for No Reversion Springing Executory Interest Springing Executory Interest No "to A from year to year" Reversion . 7) Obligation to pay interest on the mortgage If the property was already mortgaged when the life tenant's estate became possessory. to the extent that the property produces or can produce income.4 MicroMash MBE In Brief: Real Property 5) Obligation not to commit waste The right of life (and nonfreehold) tenants to the use and enjoyment of property is limited by the doctrine of waste.

at the death of a joint tenant. It cannot be devised by will. any conveyance that included "the four unities" was presumed to create a joint tenancy.e. and their tenancy does not meet the criteria for a joint tenancy or tenancy by the entirety. Requirements necessary to create a joint tenancy 1) Common law At common law. . The joint tenancy and tenancy by the entirety are specialized forms of concurrent ownership.MicroMash MBE In Brief: Real Property 5 Tenancy at Will Determinab le Estate Estate Subject to a Condition Subsequent No (Implied consensual possession) by Reversion Springing Executory Interest Shifting Executory Interest Shifting Executory Interest Yes "to A and his heirs so long as . The right of survivorship The right of survivorship is an incident to a joint tenancy. . If one tenant dies. . but if . . There are no rights of survivorship. When the respective shares of tenants in common are not specified. . her interest passes to her heirs or devisees. they are presumed to hold equal shares. . A right of survivorship signifies that. Joint Tenancy a. estates) in a single parcel of land at the same time. with special requirements for their creation. his interest passes to the surviving joint tenants. All other concurrent estates are tenancies in common. 1. then . b. .. Tenancy In Common A tenancy in common exists when two or more owners have the right to possess property at the same time. " "to A and his heirs. 2. CONTENACY Concurrent estates exist when two or more persons have possessory rights (i. " Possibility of Reverter Right of Entry for Condition Broken Yes B.

The joint tenancy (and right of survivorship) persists between the other joint tenants. 2) Partition action A judgment in a partition action will destroy a joint tenancy. since her interest would always predate the interests of her grantees. Such a devise is of no effect at all. it must be clear that the grantor intended to create a joint tenancy. 2) Modern law (a) Intent to create must be explicit Generally. A mortgage by a joint tenant will destroy the joint tenancy in a title-theory state (where title is passed to the mortgagee as security). Some states require that the grant specifically include a right of survivorship. (b) Unity of title The interests of all the cotenants had to be acquired from the same instrument.6 MicroMash MBE In Brief: Real Property (a) Unity of time The interests of all the cotenants had to vest at the same time. . Many jurisdictions also hold that the signing of a contract to sell the joint tenant's interest will destroy the joint tenancy. Destruction 1) Conveyance A joint tenant's conveyance of an interest in the property will destroy the joint tenancy between his interest and the interests of his fellow cotenants. (c) Unity of interest The cotenants had to have equal interests. under modern law. (d) Unity of possession The cotenants had to have equal and concurrent rights to possess and enjoy the property. at least for equitable purposes. c. a joint tenancy is not destroyed by an attempt to devise the joint tenant's interest. This requirement meant that a grantor could not create a joint tenancy between herself and other cotenants at common law. (b) Unity of interest Most jurisdictions still require that joint tenants have equal interests. However. 3) Effect of destruction The destruction of a joint tenancy terminates the right of survivorship only of the share conveyed or partitioned.

b. Moreover. Destruction A tenancy by the entirety can only be terminated by a divorce. even by a court. the property is held as tenants in common. his conduct amounts to an ouster. Once the couple is divorced. The property can be partitioned (and the tenancy by the entirety destroyed) only by agreement of the parties. or an agreement to partition. b. If a conveyance to unmarried persons purports to create a tenancy by the entirety. A tenant by the entirety cannot unilaterally have her interest partitioned. Right to convey Both the tenant in common and the joint tenant (but not the tenant by the entirety) may convey their undivided interest in the property. an annulment. permissive possession and use of the entire property by one cotenant is not an ouster. the conveyance will be effective only to convey the grantee's concurrent interest. even if the grantor held the property as a joint tenant. Partition A partition terminates concurrent ownership by assigning a physical share of commonly held land corresponding to the interest of a cotenant to the cotenant in exclusive ownership. Tenancy By The Entirety Tenancy by the entirety is a form of concurrent ownership that can be held only by a married couple. the conveyance may be treated as an ouster of her cotenants. Mere separation will not suffice. There is a right of survivorship. but the owners cannot convey or unilaterally partition their individual interests (unlike joint tenants). Property held in tenancy by the entirety can only be voluntarily . many courts will find that a joint tenancy was created. Thus. Right to possession A cotenant is entitled to possession of the entire property. the conveyance will not be given effect insofar as it interferes with the other cotenant's right of partition. and an action of ejectment will lie. However. The grantee succeeds to her grantor's concurrent ownership in the property as a tenant in common. subject to the same right as his cotenants. if one of the cotenants actively excludes the others from possession or enjoyment of the whole or any part of the property. a. A tenancy by the entirety cannot be terminated by a conveyance or a devise.MicroMash MBE In Brief: Real Property 7 3. Rights And Liabilities Of Cotenants a. Creation A married couple is presumed to take as tenants by the entirety. 4. since the grantor probably intended that the cotenants should have a right of survivorship. When one tenant seeks to convey her interest in the property by separating and conveying a particular segment of the property. c. If one cotenant purports to convey full and exclusive ownership of the property.

in the case of improvements. or repairs which only benefited the paying cotenant. In general. 3) Restraints on right of partition Reasonable restraints on a cotenant's right of partition are generally upheld. However. mortgage principal. contribution will usually be denied. 7) Waste Most jurisdictions have enacted statutes permitting one tenant to sue another for waste.8 MicroMash MBE In Brief: Real Property partitioned. 5) Obligation to pay for improvements and repairs In cases of necessary repairs. 4) Obligation to account for rent Since a cotenant has a right to occupy the entire premises. . Remainders and executory interests are nonreversionary future interests. possibilities of reverter. such as interest on a mortgage. A future interest is contingent if the grantee's right to later possess the property is uncertain. A future interest is nonreversionary if it is granted to someone other than the grantor at the time the grantor conveys the prior estates. and rights of entry are reversionary future interests. A cotenant commits waste when she exceeds the reasonable use and enjoyment of the land. C. she is not generally liable to account to her cotenants for the fair rental value of her own personal use of the land. since the cotenant always has the right to sell his undivided interest in the property. the majority rule is that contribution from the other tenants will be required. 1) Voluntary partition Cotenants may validly agree on a division of the land. a future interest is vested if the holder has a present (i. or taxes.e.. All reversionary future interests are also said to be vested. unnecessary repairs. Reversions. he is generally entitled to contribution from the other cotenants. This agreement must be in writing to be effective. FUTURE INTEREST A future interest is reversionary if it is retained by the grantor at the time he conveys the prior estates. 2) Involuntary partition Partition of property held in joint tenancy or tenancy in common may also be accomplished by court action. certain) right to later possess the property. Property held in joint tenancy or tenancy in common can be partitioned by either of the following methods. 6) Obligation to pay taxes and carrying charges Where one tenant pays more than his share of carrying charges.

Reversions Anytime a grantor conveys a qualified estate or an estate of lesser duration than she owns. a. Future interests held by the grantor are never subject to the Rule Against Perpetuities. 1) Legal incidents of a vested remainder The designation of a remainder as "vested" rather than "contingent" has the following ramifications: • • • A vested remainder does not lapse if the holder dies prior to the time of possession. 2) Classification of vested remainders • The Absolutely Vested Remainder. but is contingent. • The Vested Remainder Subject to Complete Divestment. • The Vested Remainder Subject to Open. Remainders Vested And Contingent Any interest in a third party that may become possessory immediately after a prior life estate. without expressly naming a subsequent taker. a future interest is contingent until the grantee meets all necessary preconditions to having a right of possession. If the individual is not yet alive or has not yet met a condition precedent to his taking an interest. Vested remainders are not subject to the Rule Against Perpetuities. The vested remainder subject to open most commonly occurs in class gift situations. or freehold estate is a remainder. . fee tail. as discussed infra. The grantor retains a reversion when she grants an absolute interest that is less than her own interest. then his interest is not yet vested. but a condition subsequent will completely divest the remainder interest. Vested remainders An individual's remainder is vested if he has a present or certain right to take possession of the property when the prior estates terminate.MicroMash MBE In Brief: Real Property 9 That is. the grantor automatically retains a future interest. 1. Contingent remainders were "destructible" at common law. A vested remainder is "subject to open" (or "subject to partial divestment") if the remainderman's interest is vested but her share of the property is not certain because other persons may be capable of sharing in the grant. 2. A vested remainder subject to complete divestment is not subject to a condition precedent. The interest of the person holding an absolutely vested remainder is subject neither to dilution nor to divestment.

and if not so used. 1) Words of creation The condition precedent to vesting can be explicit or implied. a contingent remainder was destroyed if it had not vested by the time the preceding estate terminated. to B" creates a shifting executory interest in B. Executory Interests Any nonreversionary future interest following a qualified fee or any interest held by the grantor is an executory interest. but has not yet met a condition precedent to taking such an interest. 2) Destructibility of contingent remainders At common law. A possibility of reverter signifies that title and right to possession will automatically re-vest in the grantor on the happening of the specified condition. so long as the property is used for church purposes. Shifting executory interests A nonreversionary future interest following a qualified estate held by another grantee is a shifting executory interest. at his discretion. Contingent remainders An individual holds a contingent remainder whenever he may someday have a right to take a remainder interest. 3. a. A conveyance "to A. when and if the stated condition comes to pass. 4. b. b. . Right of entry The right of entry for condition broken (or power of termination) is created when the grantor conveys an estate subject to a condition subsequent. Possibilities Of Reverter. Possibilities of reverter The grantor retains a possibility of reverter when she conveys a determinable estate. unlike reversions and possibilities of reverter. depending on the holder of the prior estate. Executory interests are classified into "shifting" and "springing" interests.10 MicroMash MBE In Brief: Real Property b. The right of entry for condition broken is considered a personal right and thus not alienable. Springing executory interests A grantee holds a springing executory interest when his estate does not begin until a future time and the immediately preceding estate is held by the grantor. Power Of Termination a. The destructibility of contingent remainders has been abolished today. The right of entry signifies that the grantor has the right to take back the granted estate from the grantee.

Fee Tail. then to B and her heirs" "(to X for life). Fee Tail. Fee Tail. Fee Tail. but if the property is not used for church purposes then to A and her heirs" Yes Life Estate. Periodic Contingent Remainder. and Yes then to A and her heirs if A survives X" "(to X and her heirs). Years. or Estate for Years then to the children of Closes) A and her heirs" "(to X for life) then No to A and her heirs. Executory Remainder Vested subject to Complete Divestment or Reversion Fee Simple subject to an Executory Interest (9) Executory Interest (Springing Use) "(to X for life). or Estate for Years Fee Simple subject to an Interest. and Yes one year after X's death. or Estate for Years Life Estate. Summary Of Future Interests Name of Interest Example of Words Necessary to Create Interest Applicability of Rule Against Perpetuities Interest Usually Preceding It Life Estate. to A and her heirs" .MicroMash MBE In Brief: Real Property 11 5. for Term Tenancy. Fee Tail. but if A does not survive X. or Estate for Years "(to X for life) and Yes (until Class Life Estate. Executory Interest Fee Determinable Simple (1) Reversion (Created by law when No grantor transfers less than she has) (2) Possibility of Reverter (3) Right of Entry for Condition Broken (4) Absolutely Vested Remainder (5) Vested Remainder Subject to Open (6) Vested Remainder Subject to Complete Divestment (7) Contingent Remainder (8) Executory Interest (Shifting Use) law No by (Created Simple Fee after Determinable) law No by (Created after a Fee Simple subject to a Condition Subsequent) "(to X for life) No and then to A and her heirs" Fee Simple subject to a Condition Subsequent Life Estate.

he was liable for any negligence in the repair. (b) Short-term lease of a furnished dwelling The landlord would be liable for any damages resulting from defects of which she was or should have been aware. 1. Landlord's obligations 1) Common law rule In general. if the landlord supposedly repaired a defect. which is not measured by a human life. In these cases. The following situations provided the only exceptions to this general rule. (c) Short-term public-use lease If the landlord knew the tenant was going to open the demised premises to the public and the lease was only of a short duration. the landlord was not liable in tort for . The grantor (landlord) also has an implied right to collect rent from the grantee/tenant during the tenant's possession. the defects should be ones of which the landlord actually was or should have been aware. In order to qualify as negligence. 2) Leases imposing duty on landlord In the case of minor defects. (e) Undertaking to repair If the landlord undertook to repair a defect on the premises. the landlord was (and is) liable for any negligence in maintaining the premises. Fitness And Suitability Of The Premises a. Thus. the landlord made no implied warranties that the premises were or would remain in any particular state of repair. (a) Latent defects The landlord had a duty to disclose (not repair) defects which the tenant would not reasonably be able to discover. at common law. the landlord was liable for any defects on the premises. the damages would be the cost of repair. THE LAW OF LANDLORD AND TENANT These estates are typified by the grantee's finite possessory right. but the defect still injured someone.12 MicroMash MBE In Brief: Real Property D. at common law. the damages would be the difference between the fair rental value of the premises in good repair and in the state of repair in which they were actually leased. the landlord would be liable. even if he was under no duty to repair the defect in the first place. (d) Common areas The landlord was always liable for defects in the common areas of multi-unit dwellings. However. In the case of major defects.

The tenant would also be liable to repair everyday wear and tear to the property. Creation. Termination a. The modern trend is to impose such tort liability. The landlord must repair any defects that rise to the level of a violation of the local building codes. unless the defects were caused by the negligent or intentional acts of the tenant. but also covenant that the landlord will keep the premises in compliance during the lease term. b. 2. but he is not obligated to repair the ordinary wear and tear to the property (unless such repair is necessary to avoid more substantial waste). .MicroMash MBE In Brief: Real Property 13 any injuries sustained as a result of a breach of a covenant to repair. This covenant cannot be waived by the tenant. (b) General duty of care Many jurisdictions now impose a general duty of care on landlords in regard to residential tenants. If the tenant covenants to repair. No notice is required. In these states. a landlord is liable for her negligence in failing to discover or repair defects. unless he holds a very long-term lease. Types Of Holdings. The tenant is also liable for any "ameliorating" waste which changes the property (even if it increases the property's value). The estate for years Any estate with a fixed and certain period of duration is an estate for years. An estate for years terminates at the end of the stated period. unless the lease provided otherwise. Most American jurisdictions now require that any lease for more than one year must be in writing. The defects need not rise to the level of a violation of a building code to create liability for damages or personal injuries. A tenant is required to repair negligent or intentional damage done to the premises. Tenant's common-law duty to avoid waste The common-law rule is that the tenant is only under a duty to avoid waste. This duty is absolute and arises regardless of the cause of the damage. the premises must be returned to the landlord in the condition in which the tenant received them. These covenants generally not only warrant that the premises are in compliance with local building health and safety codes at the commencement of the lease. 3) Modern rules of residential leases (a) Implied covenant of habitability The modern law of most states imposes an implied covenant of habitability on any residential lease.

Periodic estates An estate for successive periods of time with no fixed termination date is a periodic estate. those covenants may run with the land at law and be enforceable by and against successors. the rights of the parties will depend on whether the transfer is an assignment or a sublease. c. tenants for years. Tenancy at will A tenancy at will is a tenancy which is terminable at the will of either the landlord or the tenant. and has no specified period of duration. In effect. d. If the tenant sells her leasehold. and periodic tenants are freely transferable. the interests of landlords. 3. generally Since the landlord and tenant are in horizontal privity when they make any lease covenants. there has been a sublease of her interest.14 MicroMash MBE In Brief: Real Property b. there has been an assignment of her interest. The transfer of a tenancy at will or at sufferance is valid between the parties. A subtenant is not in privity of estate with the landlord. but is not enforceable against the landlord. Assignment And Subletting Unless there is a lease provision to the contrary. Tenancy at sufferance A tenancy at sufferance occurs when the tenant wrongfully remains in possession after her tenancy has been validly terminated. Running of lease covenants. 1) Periodic tenancy by implication A periodic tenancy can be implied anytime a tenant pays and the landlord accepts rent for an identifiable period of time. a. 2) Termination of periodic tenancies Periodic tenancies can be terminated by either party. Also. . between the tenant and her subtenant. the fact that the landlord owns a reversionary estate in the leased premises will satisfy the requirement that the party seeking to enforce an equitable servitude must hold an estate that will benefit from the covenant. No notice is required to terminate a tenancy at sufferance. the sublease creates a second tenancy. An assignee of the tenant takes the tenant's estate and thus is said to be in privity of estate with the landlord. If the tenant conveys less than her entire estate. If the tenant conveys the remainder of her entire (temporal and physical) estate. but the terminating party usually must give notice of termination equal to the length of the tenancy period.

Covenants against assignment and subletting Leases often contain a clause prohibiting assignment and/or subletting by the tenant. Since the assignee is liable only by virtue of her possession of the estate and is not held to have assumed the contractual obligation per se. If the amount is not specified in the lease or by agreement. however. Rent The tenant's obligation to pay rent is implied in the landlord-tenant relationship. he is only secondarily liable (as a surety). the tenant's covenant to pay rent runs with the land and is enforceable against the assignee. . she is liable on the rent obligation only for the period of her estate (i. The rent obligation.MicroMash MBE In Brief: Real Property 15 b.e. if the tenant assigns his interest. Defenses to the rent obligation 1) Eminent domain If the entire premises have been taken by eminent domain. (c) Assumption of rent obligation by lessee If the lessee expressly assumes the tenant's rent obligation. consent to one sublease or assignment extinguishes the landlord's right to object to any future assignments or subleases (unless the right is specifically saved by agreement). If less than all of the property is taken. courts construe these provisions narrowly and are quick to find a waiver of the landlord's contractual right to prohibit a sublease or assignment. a. c. the landlord can sue the lessee directly as a third-party beneficiary of the contract between the lessee and the tenant. Since such a clause restricts the tenant's right of alienation. However. the lease and the rent obligation are terminated. (b) Obligation of a subtenant The rent covenant is not directly enforceable against a subtenant. specifically 1) Obligation of the original tenant The tenant cannot discharge his rent obligation by either a sublease or assignment. modern law provides for a proportional abatement in the rent for any lost value the tenant cannot recover from the taking authority. a reasonable rent will be implied. 4. Under the rule in Dumpor's case. His contractual obligation to pay rent continues even if he is no longer in possession of the property.. her possession). 2) Obligation of the tenant's lessee (a) Obligation of an assignee When a lessee accepts an assignment of the tenant's interest in leased land. an assignee assumes the primary obligation to pay rent.

The tenant must vacate the premises within a reasonable time after the interference has commenced. The landlord's surrender can be an express agreement to terminate the lease (which must be in writing if more than one year remains on the lease).16 MicroMash MBE In Brief: Real Property 2) Destruction of the leasehold At common law. in order to take advantage of this defense to the lease. or re-rents the premises on his own account. If the premises fail to meet the standards imposed by this covenant (usually based on local safety and health ordinances) or if the landlord fails to meet the obligations of an actual covenant to repair. 3) Frustration of purpose/illegality Common-law courts allowed the tenant to avoid the lease under the doctrine of frustration of purpose only if the only use of the premises allowed by the lease was or later became illegal (e. if the premises consisted solely of space in a building and the building was destroyed. the lease and the rent obligation were terminated. If the landlord takes possession of the premises for his own use. by failing to provide heat). However. such action will always be held to be a surrender. or it can be found in the landlord's actions. 5) Eviction An actual. 4) Surrender A tenant cannot unilaterally abandon the property and avoid his contractual rent obligation. Unlike the . the common law held that the lease and the rent obligation would be fully enforceable.. the tenant has several options. if the premises consisted of land as well as buildings. 7) Breach of a covenant of habitability The modern law of most states imposes an implied covenant of habitability into any lease of residential premises. by new zoning regulations).g. physical eviction of the tenant by the landlord or anyone with superior title violates the covenant of quiet enjoyment and discharges the tenant's rent obligation. The rent obligation is terminated only if the landlord agrees to "surrender" the lease. the lease is not discharged.g. statutes in many jurisdictions or provisions in the lease itself often provide for at least an abatement in rent if the buildings or part of the premises are destroyed. If the landlord re-rents the premises on behalf of the tenant. Today. 6) Constructive eviction Constructive eviction occurs when the landlord breaches the covenant of quiet enjoyment by significantly interfering with the use and enjoyment of the demised premises (e. Some states have extended the applicability of the doctrine beyond supervening illegality. to encompass acts of God or third parties that make the property unusable for its intended use.. often including a right to abate rent.

as it becomes due. purportedly making the tenant immediately liable for all the rent due for the life of the contract on any breach of the tenant's rent obligations. Even if the lease contains an acceleration clause. either by the terms of the lease or by the terms of a statute. b. The landlord generally cannot sue for future rent due under the contract. inspection) without automatically surrendering the lease. Many courts view such clauses as a penalty rather than a reasonable attempt to establish liquidated damages. 2) Eviction The modern law of most states gives landlords the right to evict for failure to pay rent. Surrender. Mitigation Of Damages. the landlord probably will not immediately be able to sue for that amount. the tenant need not quit the premises to utilize the defense of breach of a covenant of habitability. unless he evicted the tenant. c. Anticipatory breach The landlord can sue the tenant for the rent due. the landlord will be required to mitigate his damages and will only be able to collect the rent he could not obtain from another source. because the doctrine of anticipatory breach does not apply to leases. The modern trend is to require that the landlord regain possession only through judicial process.g. Surrender A tenant cannot unilaterally abandon the property and avoid her contractual rent obligation. and refuse to enforce them. A re-renting of the premises by the landlord may or may not qualify as a surrender. Most courts presume that the re-renting of the premises operates as a surrender.MicroMash MBE In Brief: Real Property 17 defense of constructive eviction. b. such action will always be held to be a surrender. depending on the circumstances. Anticipatory Breach a. unless the landlord makes it very clear that she is doing so only on behalf of the tenant.. 5. However. Mitigation of damages In most jurisdictions. The rent obligation is terminated only if the landlord agrees to "surrender" the lease. . If the landlord takes possession of the premises for her own use. the landlord can enter the premises for more limited purposes (e. The common-law rule was that a landlord was not required to mitigate his damages by reletting the premises. Landlord's remedies for failure to pay rent 1) Debt action The landlord can sue the tenant for the rent due. as it becomes due.

she owes a duty of loyalty and utmost good faith in all matters pertaining to the trust. As such. requiring equitable interests in land to be created by a written instrument. OWNERSHIP INTERESTS IN TRUSTS Through the use of a trust it is possible to vest the legal title in land in one individual (the trustee) and the equitable or beneficial interest in that land in others (the beneficiaries of the trust). she usually may not enter into any transactions with the trust. Power of contract The trustee has the inherent power to enter into contracts to manage the trust property. she cannot offset the gains against the losses. d. If a trustee uses trust funds for her own benefit or in any other improper fashion. She may not put herself in a position where her interests would be contrary to the interests of the trust. If the improper conduct leads to both gains and losses. Duty of loyalty and good faith The trustee is a fiduciary. 3. he is not strictly liable if his decision in a certain matter turns out to be erroneous. The Trustee a. Hence. and is not liable on such contracts personally. However. b. Rights Of Beneficiaries The beneficiary of a trust has only the rights given to her in the trust instrument. The Instrument In most jurisdictions. he is not expected to be infallible. she must obtain court permission to sell. 1.18 MicroMash MBE In Brief: Real Property E. e. the beneficiary has no right to the income. as long as the third party knew that the trustee was acting in a fiduciary capacity. . provided that he exercised reasonable care. If the trust permits the trustee to pay income on a discretionary basis. Power of sale Unless the trust instrument gives the trustee the power to sell the trust property. Right of compensation A trustee is entitled to reimbursement for his reasonable expenses and liabilities incurred in the execution of the trust. Duty of reasonable care The trustee is required to exercise reasonable care in managing the trust. Therefore. 2. she must account to the trust for any profits made or losses incurred as a result of such improper conduct. the Statute of Frauds applies. c. and reasonable compensation for his services.

and a specific trust res are the same. b. By the settlor A valid trust cannot be unilaterally terminated by the settlor prior to the time set out in the trust instrument. however. The requirements of a settlor with capacity to convey. members of an indefinite class. . Charitable Trusts Charitable trusts are favored by the law because of their benefit to society. 4. b. By the terms of the trust A trust will usually establish its own date of termination or a condition that will terminate its existence. They are liberally construed and are exempt from some of the restrictions that apply to private express trusts. the trust cannot be terminated by agreement of all of the parties in interest. properly expressed intent.MicroMash MBE In Brief: Real Property 19 The beneficiaries have the right to sue the trustee (and. 5. in some cases. A trust can also be terminated prior to its express termination date by the methods described below. A probate court does. unless the power to revoke was expressly retained. The reason for this rule is that a charitable trust is basically concerned with a public benefit. By the beneficiaries Where the settlor has fixed the period for the termination of a trust. 2) Rules against perpetuities and accumulations The Rule Against Perpetuities does not apply to charitable trusts. such trusts may be perpetual. a. Termination Of A Trust a. unless the accumulation is found to be unreasonable. the persons to be benefited must be uncertain — that is. it does not affect the validity of the trust that only a small number of persons will actually benefit from the trust or that the amount each will receive is small. Creation similar to private trusts A charitable trust may be created by any of the methods for creating a private express trust. The Rule Against Accumulations also does not restrict charitable trusts. As long as the class is indefinite. possess the power to terminate a trust. Differences from private trusts 1) Indefinite beneficiaries In order to qualify as a valid charitable trust. c. cause the trustee to be removed and another trustee appointed) if the trustee has breached her fiduciary duties.

religion. the court under the cy pres doctrine may apply the gift as nearly as possible to the settlor's particular charitable intent. However. the titleholder is the purchaser's minor child or spouse). including the furtherance of health. and the relief of poverty or discrimination. Implied Trusts Implied trusts are an equitable remedy used by courts to avoid the unjust enrichment of a titleholder. but title is taken in the name of another party.g." a. Neither the settlor nor any member of the community who might benefit from the trust may bring suit to enforce it. . can no longer be accomplished. it is likely that at some point the charitable purpose intended by the settlor will have been accomplished. or some other change in circumstances renders it impracticable to administer the trust in the precise manner provided by the settlor. governmental establishments (such as parks or museums). 1) Title to property taken in the name of a person other than the one paying the consideration If one party pays (or is responsible for) the full purchase price. Thus. they differ from express trusts in that they arise by operation of law..20 MicroMash MBE In Brief: Real Property 3) Trust purpose (a) Must be charitable The essence of a charitable trust is that it is established to accomplish one or more charitable purposes. In such cases. (b) Cy pres doctrine Since a charitable trust may be perpetual. unless the instrument creating the trust provides to the contrary. They also differ from express trusts in that the trustee's only power and duty is to convey legal title to the property to the "beneficiary. Resulting trusts Resulting trusts are found in situations where the court determines that the intent of the parties was that the settlor-beneficiary should have title to the property. rather than by any expressed intent of a settlor. a court usually will decree that the titleholder holds the property in trust for the person paying the purchase price. if the person paying the purchase price is legally obligated to support the person taking title (e. no resulting trust will be found. The purpose must be one recognized in the law as charitable. education. 4) Power to enforce The duty of taking action to protect public charitable trusts and to enforce proper application of their funds rests solely upon public officials. 6.

the period does not begin until the death of the testator. Measuring lives can only be usefully implied from a grant if every member of . or legatees. he holds title to such property in trust. F.MicroMash MBE In Brief: Real Property 21 2) Purchase by a fiduciary If a fiduciary uses fiduciary funds to purchase property. the period begins at the time of the creation of the trust. or they will be invalid. If the property is transferred inter vivos. The Rule Against Perpetuities The Rule Against Perpetuities states that all nonreversionary future interests must be certain either to fail or vest within 21 years after some life in being at the creation of the interest. b. If the property is transferred by will. 2) The lives in being Once the starting point of the rule is determined. the period does not begin until the power of revocation is terminated (e. If the trust is revocable. If the lives are only artificially connected with the gift. an interest is created when the property is no longer freely alienable by any party. executory interests.g. but takes title in his own name. 3) On termination of express trust Where an express trust is properly created but fails for some reason." Generally. and options or rights of first refusal. Lives naturally connected with the gift can be implied from the grant. a. her heirs. the period begins at the time of the transfer of title to the grantee.. SPECIAL PROBLEMS 1. If the property is placed in an irrevocable trust. the trustee holds any remaining trust funds on a resulting trust for the settlor. b. they must be expressly set forth in the grant. The period of the rule 1) The starting point of the rule period The rule period begins with "the creation of the interest. Constructive trusts A constructive trust may be imposed where property has been acquired as the result of fraud or a violation of a fiduciary duty or confidential relationship. devisees. The lives in being may either be ones artificially or naturally connected with the conveyance. Interests to which the rule applies The rule applies only to contingent remainders. we must determine whether there are any lives in being at that time that can serve to extend the period of time allowed by the rule. at the settlor's death).

from the moment of their creation. (a) The fertile octogenarian rule For purposes of the Rule Against Perpetuities. An executory interest vests only when it becomes a present possessory interest. the interests are probably invalid. 3) Interests must vest or fail The rule does not require that interests actually vest within the period of the rule. be alive at the time of the creation of the interest. (c) The administrative contingency Anytime that a nonreversionary future interest does not vest until the end of some procedure or event which is not necessarily limited in time to less than 21 years. 2) Certainty These interests must be certain to vest (or fail) within the prescribed period. the period allowed by the rule for vesting is only 21 years from the creation of the interest. Any nonreversionary future interest that is not explicitly or implicitly limited to vesting within a limited period of time will violate the rule and thus be void. the widow might not be a life in being at the creation of the interest. at the time of the creation of the interest.22 MicroMash MBE In Brief: Real Property that class must. If. If no measuring lives are identifiable. there is any possibility that the interest will not vest within the rule period. A child conceived but not born at the time of the creation of an interest is a life in being." there is no guarantee that that living person will be married at his death to a person who was alive at the time of the creation of the interest. every person is presumed to be capable of having children as long as they are alive. Nonreversionary future interests must vest or fail 1) When interests vest A contingent remainder vests when it becomes either a vested remainder or a present possessory interest. (b) The unborn widow rule If an instrument gives an interest to a living person's "widow. the subsequent interest will vest too remotely and is void. . Thus. If a subsequent interest does not vest until after the widow's interest. by definition. c. the interest is void. even though that may be physically impossible. only that they be limited such that they either vest or fail within the period.

... If the class closes. a fee simple subject to a condition subsequent). The rule's effect on interests and conveyances If the future interest violates the rule.g. courts employ the "rule of convenience" — a class closes at the time that any member of the class has a right to distribution of her share. however. then the class gift is saved (for those members). If the rule could be violated by any potential member of the class. a life estate or a fee simple determinable). If the condition that terminates the prior estate is part of the description of the prior estate (e.g. the prior estate will not be altered. If the class gift is. postponed (e. Special applications of the rule 1) Class gifts A class gift exists anytime a gift is to be shared equally among a group of unnamed individuals who all bear the same relationship to the grantor (e. then the class does not close until a class member has a right to receive her share. then the class closes immediately. it is to become possessory only after a prior estate ends or some precondition is met). The striking of a future interest from an instrument may also alter the estate of the prior holder. If the class gift is an immediate lump sum and there are no members of the class alive at the time of distribution. If the condition which terminates the prior estate is part of the description of the future estate only (e.g. If the gift is per capita. "my grandchildren"). then the entire class gift is void. e. the interest is void and is stricken from the granting instrument.g. it should be held valid. the class closes immediately on the testator's death. f. If the gift is immediate and there are members of the class alive at the testator's death. . then the class stays open until all potential members of the class are determined.. The Rule Against Perpetuities has a harsh effect on class gifts.MicroMash MBE In Brief: Real Property 23 d. 2) The charity-to-charity exception The Rule Against Perpetuities does not apply when property is vested in one charity. Modifications of the common-law rule 1) The "wait and see" doctrine Some courts and statutes have adopted the view that unless a limitation does in fact fail to vest within a life in being plus 21 years. by its own terms. with a gift over to a different charity on the happening of a condition. at such a time that it is certain that the interests of all the members of the class (as constituted) will vest within the rule. then the prior estate will be converted from a qualified estate into an absolute estate. As a general rule.

Additionally. and a nonvested easement in gross. perhaps. Descendability. a lease commencing at a certain time or upon the happening of a future event. Disabling restraints are void (except. 1) Restraints on alienation A restraint on the right of alienation is called a disabling restraint if it purports to prohibit alienation of the estate and to render void any conveyance by the grantee. The statute embodies a wait-and-see rule allowing the nonvested property interest a grace period of 90 years to vest. modern rule. . 3) The Uniform Statutory Rule Against Perpetuities The Uniform Statutory Rule Against Perpetuities.24 MicroMash MBE In Brief: Real Property 2) The cy pres rule Some courts and statutes in recent years have used the cy pres doctrine to reform private trusts in such a manner as to effectuate the wishes of the settlor or grantor "as nearly as possible" within the confines of the rule's time limitation. a nonvested property interest is valid if it is certain to vest within the common-law rule period or actually does vest within 90 years after its creation. or the right of entry exercisable. These provisions apply whether the succeeding interest is a reversionary type of interest (possibility of reverter or right of entry for condition broken) or an executory interest (shifting use). And Devisability a. the statute has a reformation provision allowing a court on the petition of an "interested person" to modify a disposition which is invalid under the rule stated above so that it follows the grantor's intent as nearly as possible. Moreover. 2. Under the statute. when applied to nonfreehold estates). a fee simple determinable or a fee simple subject to right of entry for condition broken shall become an absolute fee unless the specified contingency occurs within 30 years. All future interests (except rights of entry) are alienable. embodies a relatively liberal. Alienability. but does in fact vest within 90 years. The statutory rule (§5) also provides that the following rights or interests must be exercised within 30 years of their creation: • • • an option in gross or a preemptive right of first refusal in gross regarding an interest in land or minerals. Right of alienation All present estates (except tenancies at will or sufferance) are alienable. the succeeding interest becomes possessory. irrespective of whether the bequest or devise would have violated the Rule Against Perpetuities. If the contingency does occur within the 30year period.

Devisability Devisability is the right of the possessor to dispose of his interest in land by will. . Promissory restraints are generally effective against all estates. the Rule in Shelley's Case operated as a rule of law to transform a remainder in the "heirs" or "next of kin" of a life tenant into a remainder in the hands of the life tenant herself. Such a right is enforceable as long as it does not function as a restraint on the grantee's right of alienation. all property rights today are devisable. Remainders in "heirs" or "next of kin": The Rule in Shelley's Case and the Doctrine of Worthier Title At common law. A preemptive right restrains a grantee's right of alienation if the grantor has a right to buy the property at a price below market value. such as a life estate. all property rights today are descendable and will pass to the heirs of the previous owner if she dies intestate. b. However. the vast majority of states have rejected the Rule in Shelley's Case and the Doctrine of Worthier Title as rules of law. they remain as rules of construction in many states. Except for property rights that are limited by the life of the possessor. The Doctrine of Worthier Title accomplished much the same function as the Rule in Shelley's Case when the grantor conveyed a limited estate inter vivos with a remainder in her own "heirs. such as a life estate. A forfeiture restraint would take the form of a qualified estate. Under modern law. Forfeiture restraints are generally effective against all estates. Except for property rights that are limited by the life of the possessor. c." The remainder in the grantor's heirs was treated as a reversion in the grantor. Rules of Construction a. Descendability Descendability is the right of the property owner's heirs to inherit whatever interest she held in the property by intestacy upon the death of the owner. A restraint is called a promissory restraint if the grantee covenants or contracts not to convey the estate. 2) Preemptive rights A preemptive right is a right retained by a grantor to buy back the granted property when the grantee chooses to sell it. except fees simple. 3. except fees simple.MicroMash MBE In Brief: Real Property 25 A restraint is called a forfeiture restraint if the grantee loses his estate if he attempts to convey it.

discussed infra. RIGHTS IN LAND A. as a rule of construction.when survival is required • • • When the condition is expressed When survival to a given age is required When the grant is to "heirs" the individual's family members must survive that person in order to qualify as heirs 4. b. the conveyance would create a tenancy in common in A and any living children. but now hold the land to which the agreement pertains. 1. in that it could create a concurrent estate between A and the children in existence at the time of the conveyance. it must first have been enforceable between the original parties. but also by or against persons who were not parties to the original agreement. A covenant can run with the land either at law or as an equitable servitude. II. A covenant in a deed need not be signed by the promisor. Conditions of survival 1) General rule . The only exception is commonscheme restrictions. 2) Exceptions . the holder of a future interest need not survive the holder of a prior possessory estate in order to take the interest. a covenant must also be signed by the promisor. or it could create a present interest in the parent and a future interest in all of the parent's children.survival not required As a general principle.26 MicroMash MBE In Brief: Real Property b. it will be binding if the promisor accepts the deed. Requirements For A Covenant To Run a. A binding covenant In order for a covenant to be enforceable by or against successors. then. A writing and signature A covenant relating to land must be in writing. whenever born. if A did not have children at the time of the gift. COVENANTS AT LAW AND IN EQUITY A covenant is an enforceable contractual obligation between two parties. A covenant becomes a covenant running with the land if it is enforceable not only between the actual parties to the covenant. In general. As a rule of construction. if the promisor is the grantee. the conveyance would create a life estate in A and a remainder in all of his children. Gifts "To A And His Children" A gift "to A and his children" is ambiguous. If A had children living at the time of the conveyance. .

the promise must affect the promisee and promisor as owners of land. then most jurisdictions hold that it touches and concerns the land affected. he is not in privity with the original party to the covenant. If a covenant increases the value of the promisee's land or decreases the value (or uses) of the promisor's land. . Therefore. and not merely as individuals. the promisor and promisee must have been in privity of estate at the time the covenant was imposed. since the successor did not acquire the promisor's exact estate. 2) Vertical privity The successor to property can only be held to the covenant if he has succeeded to the original party's estate (that is. Neighboring but unrelated landowners can enter into a covenant that may be enforceable against the successors to the property as an equitable servitude.MicroMash MBE In Brief: Real Property 27 c. Special requirements for a covenant to run at law 1) Horizontal privity In order for a covenant to run at law. Likewise. Covenants to pay money touch and concern the land when there is a direct relationship between the payment of the money and services to be rendered to the land.. the party seeking enforcement of the covenant must be able to trace her estate back to the original promisee. many jurisdictions hold that a successor who owns a lesser estate than the promisor cannot have a covenant enforced against him. Intent The original parties must have intended that the rights and/or the duties of the covenant run with the land. i.e. Touch-and-concern requirement A covenant must "touch and concern" the land in order to run. and the covenant is not enforceable by or against him. e. This means that the promisor must have granted the promisee's estate to the promisee (or vice versa) by the same instrument that imposed the covenant. Special requirements for equitable servitudes 1) Privity No horizontal privity is required for an equitable servitude to be enforceable. his title can be traced back to the original party). The covenant must touch and concern both the land of the promisor and the land of the promisee to be enforceable by and against the successors of both parties. d. f. Vertical privity is required only for the right to run. If the successor to the property acquired his title by adverse possession or at a foreclosure sale.

The Common Scheme If land is developed under a common scheme (e. where it is appropriate. Denial Of Relief In Equity Equitable enforcement of a covenant running at law may be denied and an equitable servitude may be extinguished entirely in a number of situations. However. Effect of common scheme — negative reciprocal restrictions Any owner burdened by the common-scheme restrictions can enforce those restrictions on any land that is part of the common scheme. 3) Dominant estate An equitable servitude can be enforced only if the person seeking enforcement is the owner of a parcel benefited by the covenant. Easements are indefinite in duration and their enforcement is not subject to the requirements of contract law or equitable considerations. a lease is only appropriate where the person who seeks to control the use of the land is and wants to remain the owner of the land. Comparison Of Land-Use-Control Devices A lease is an effective means to control the use of the land. However. For example.g. Only a bona fide purchaser can avoid an equitable servitude on a parcel of land. An easement is often a preferable device to a covenant. a. b. 3. such that a scheme of development can be inferred. Finding a common scheme In order to find a common scheme. as the lessor has an unqualified right to control the use of the land via the lease.28 MicroMash MBE In Brief: Real Property 2) Notice A covenant is enforceable in equity against the subsequent possessor of the burdened estate any time that possessor had notice.. easements usually . of the existence of the servitude. there must at least be similar restrictions imposed by a common grantor upon a significant number of lots in a given area. 4. a subdivision) and the common scheme includes restrictions on some lots. A covenant is often an effective means to control the use of land. 2. the owners of those lots can force the same restrictions on the owners of other lots which are part of the common scheme but were not expressly so burdened. actual or constructive. the equitable doctrine of unclean hands will prevent any lot owner who is in violation of restrictions on his land from enforcing those restrictions against others. However. equitable enforcement of a restriction may be denied if the neighborhood has changed such that the benefit secured by the restriction is significantly reduced. Also. regardless of who owns it. a covenant is binding on successors to land only in the limited situations described in this chapter.

and licenses are all types of nonpossessory property rights. PROFITS. It is only an option if the person who desires to control the land owns it. Moreover. except in Yes commonscheme cases Yes Yes Yes Yes Yes Yes Intent Yes Yes Yes No and Yes Touch Concern Dominant Estate Notice No. 5. meaning that the holders of such rights have the right to use or control the use of land which they do not own or possess. except where required by recording statutes Yes Yes Horizontal Privity Vertical Privity Yes. profits. but the severity of the penalty of forfeiture usually destroys the marketability (and mortgageability) of the property. its enforcement is uncertain. A zoning ordinance is rarely an effective form of land-use control. probably No No No Yes B. probably Yes. EASEMENTS. Table Showing Requirements For Running Of Covenants Duty to Run at Law Writing Yes Right to Run at Law Yes Duty to Run in Equity Right to Run in Equity Yes. AND LICENSES Easements. Its enforceability is certain. A qualified estate is also of limited effectiveness. since it can be enforced only by public authorities and is subject to administrative variances and legislative changes. it is difficult to obtain and usually cannot be obtained in reference to a single parcel of land. .MicroMash MBE In Brief: Real Property 29 cannot be used to limit the uses of land directly or to require the burdened party to perform an affirmative act. In the first place.

It is possible to defeat an easement by implication by showing that the parties did not intend to create an easement. If there is a parcel of land benefited by the easement. The benefits of the easement are held personally by the owner. which gives the owner of the easement the right to prevent the owner of the servient estate from using the land in a particular manner. it is called the dominant estate. 2) Affirmative v. Occurring less frequently is the negative easement. Classification of easements 1) Appurtenant easements v. and (3) the continued use of the quasi easement must be reasonably necessary to the enjoyment of the dominant estate. but the easement sought must be "strictly" (not just . then the easement is appurtenant. 4) By necessity An easement by necessity is the same as an easement by implication except that there is no requirement that a quasi easement exist on the land prior to the time of the division of the land.30 MicroMash MBE In Brief: Real Property 1. b. (1) the dominant and servient estates must have been held in common ownership at the time the easement was allegedly created. reserves to himself easement rights in the granted premises. in the deed. 3) By implication In order to have an easement by implication. one has the right to physically enter upon and use the land upon which the easement exists. Creation of easements 1) By express grant (a) Writing required (b) Must be recorded to bind successors 2) By express reservation An easement by express reservation is created when the grantor. An appurtenant easement is automatically transferred with the land benefited. Easements The land that is subject to or burdened by the easement is called the servient estate. An easement in gross is one that benefits no particular parcel of land. negative If one has an affirmative easement. and cannot be transferred separately from the transfer of the dominant estate. easements in gross If the owner of the easement holds it only by virtue of her status as the owner or possessor of land that is benefited by the easement. (2) the servient estate must have been used in an apparent and continuous way such that a quasi easement could be said to exist. a.

A use is continuous if it is only seasonal. (b) Open and notorious The use must be such that the owner is put on notice that she has a cause of action. (e) Status of the easement at the end of the period Once the requirements to obtain an easement by prescription are met. The elements required for an easement by prescription follow. There is no longer a requirement of continuous use. Scope of easements 1) Rights of easement holder In the case of an easement by grant or reservation. (a) Actual use Use of the servient estate must be made. The use need not oust the owner from possession. an easement by necessity lasts only as long as the necessity which gave rise to it. (c) Continuous The prescriptive use must not be interrupted or even temporarily abandoned during the statutory period. the easement rights are determined by the language of that grant. 5) Easement by prescription An easement by prescription is based upon the same legal principles as title by adverse possession. the easement has the permanence of any other kind of easement. Continuous use is interrupted and the period must start anew if the owner physically bars the owner of the dominant estate from using the easement. The statutory period runs from the time that the owner has constructive notice or actual knowledge of the use. c. If the easement by grant or reservation . If the owner grants permission to continue what once was a hostile use. provided that the customary use of the easement would occur only seasonally. or if the owner initiates court action to prevent the use of his property. An easement is strictly necessary if the land is practically incapable of use without the easement. An easement by necessity is unique in that it is not presumed to be infinite. then the prescriptive period ends. A use that starts permissively can become hostile when the user communicates the hostile nature of her use to the owner or when the permission is revoked. Successive owners of the dominant estate are able to "tack" their periods of successive use in computing the statutory period.MicroMash MBE In Brief: Real Property 31 reasonably) necessary to the enjoyment of the dominant parcel. (d) Adverse All that is required for the use to be adverse is that it be without the permission of the owner.

the owner of the servient estate has the right to reasonably fix the location of and control the use of the easement. . does not result in its destruction. If the easement is one of passage. there will not be an overburdening of the easement unless the intensity of the use is beyond the reasonable contemplation of the parties.32 MicroMash MBE In Brief: Real Property fails to determine the location and scope of the easement. 2) A written release The holder of an easement. If the original use becomes more intense because the dominant estate is more fully developed. 2) Repairs The easement holder has the obligation to keep the easement in repair. d. there must be an affirmative act that is a manifestation of intent to abandon. can terminate it by delivering a written release to the owner of the servient estate. Termination of easements 1) By the terms of the grant An easement is of infinite duration unless limited by conditions in the grant. even for an extended period. or the easement is an easement by necessity. she may use the road herself and permit others to do so. whether in gross or appurtenant. Before the easement will be terminated. 3) By non-use and intent to abandon Mere non-use of the easement. he has automatically overburdened it and that use can be enjoined. the location and scope of the easement will be determined by the prior (quasi easement or prescriptive) use of the servient estate. In the case of easements by implication or prescription. (b) Use for other than dominant estate If the holder of the easement attempts to use the easement for the benefit of land other than the dominant estate. If the location and scope of the easement have not been defined by a grant or prior use. and has the right to enter onto the servient estate to meet that obligation. (a) Changed circumstances Courts will generally permit reasonable change in the use of an easement when circumstances have changed since the creation of the easement. she may reasonably control the location and scope of an easement. 3) Right of holder of servient estate The holder of a servient estate may make any use of her land that is not inconsistent with the rights of the easement holder.

they are terminated by the death of the holder. 10) Death In a jurisdiction that does not permit the alienation of easements in gross. then the easement is extinguished. If the servient estate is later separately reconveyed. 9) End of the necessity An easement by necessity ends at the time the necessity ends. by reservation. Easements by prescription. however. 5) By merger If the servient and dominant estates come into identical ownership. then the easement is unenforceable against the purchaser. 6) By prescription If the owner of the servient estate bars the easement holder from using the easement for the statutory period. bind a bona fide purchaser. Creation Profits can be created by express grant. appurtenant profits A profit in gross is freely assignable. the easement will be extinguished. even though not recorded. and by prescription. unlike most easements in gross. trees. 2. the easement does not automatically come back into existence. and own something from the land. Profits A Prendre Profits a prendre are a specialized form of easement. 7) Destruction of the servient estate If the easement right is one of passage through a building. A profit cannot be created by necessity. Gross profits vs. then the easement will be terminated. 8) Conveyance of servient estate to bona fide purchaser If a granted easement is not recorded and a purchaser takes the servient estate without knowledge of the easement. They consist of an easement right to go on the land of another coupled with an additional right to sever. the easement is terminated if the building is involuntarily destroyed by fire or other cause. a. Profits differ from easements in the following ways. implication.MicroMash MBE In Brief: Real Property 33 4) Estoppel If either an oral release or extended non-use is coupled with reliance on the termination by the owner of the servient estate. and necessity. or water. b. or sometimes by an improper attempt to alienate the easement. remove. such as gravel. by implication (if there was a quasi profit in existence at the time of the division of the common estate). .

if the personalty is necessary to the use of the realty. Definition A fixture is an item of personal property that becomes part of the real estate because of its annexation to the real estate. if there are no clear indications of the parties' intent. Licenses A license is a right given by the owner that permits a person to go onto and use the owner's land.g. whether given gratuitously or in fulfillment of a contractual obligation. Rules for determining when personal property becomes a fixture The intention of the parties at the time the property was attached controls whether or not that personal property becomes a fixture." then either the owner or others may also take the profit. 2) The character of the personalty If the personalty was specially designed for the realty (e. the licensee has an irrevocable right to enter onto the licensor's land for access to the property. or personalty of a tenant attached as a necessary part of her business on the premises. because the Statute of Frauds does not apply. it is likely to be considered a fixture. C. trade fixtures. 1) The character of the attachment Any personalty that is attached to realty in such a way that its removal would cause substantial damage to the realty becomes a fixture. by a time period.. If the licensor permits the licensee to maintain personal property on his land. or the profit holder's right to take the profit is limited by quantity. doors or windows of unusual size) then it follows that it was to become part of the realty and is treated as a fixture. Also. Even the owner is not permitted to do so. A license is irrevocable in two instances. ownership of the item passes to the owner of the real estate. are presumed not to be a fixture. Once an item becomes classified as a fixture. A license differs from an easement in that it is usually revocable at will. or by a use which may be made of the profit taken. OTHER INTERESTS IN LAND 1." then the holder of the profit has an unlimited and exclusive right to take the subject matter of the profit from the land. However.34 MicroMash MBE In Brief: Real Property c. . If it is "nonexclusive. It is also valid if oral. b. the following factors will be important in determining their intent. On the other hand. If the licensee justifiably relies on a grant of a long-term license and spends substantial sums of money because of that reliance. 3. nonexclusive profits If the profit is "exclusive. then the licensor will be estopped from revoking the license. Fixtures a. Exclusive vs.

Rights in airspace The possessor has a right to possession of the airspace above his land. or tenancy at will. the holder of a security interest in a chattel which is later annexed to real estate. Conversely. such intrusions are made by aircraft. Removal is only permitted when it can be accomplished without seriously damaging the real estate. it is probable that any property attached by a vendor or mortgagor was intended to be part of the real estate and is therefore to be treated as a fixture. the person who annexed the personal property to the realty was the fee owner of the realty at the time it was annexed. any property attached by a tenant or licensee is presumed to remain personal property. or it will become part of the realty. Most often. then it must be removed promptly at the end of the annexor's estate.MicroMash MBE In Brief: Real Property 35 3) The relationship between the competing parties Disputes over fixtures occur between the following groups: (1) vendor and purchaser. Removal of personalty not considered a fixture If the property is not a fixture. c. periodic tenancy. 2. Any damage caused by the removal must be repaired by the owner of the removed personalty. the holder of the chattel has no security interest in the property once it has been attached. (2) mortgagor and mortgagee. and (4) life tenant and remainderman. Third-party interest in fixtures Since most mortgages are written to include later-added fixtures. Scope And Extent Of Real Property a. d. and a mortgagee who has a security interest in the real estate. a purchase-money security interest in chattels will prevail over even a prior mortgage. . a security interest in a chattel prevails over a mortgage only if the security interest in the chattel is recorded prior to the real-estate mortgage. will likely have competing security interests in the fixture. there is a reasonable time after the end of the tenancy when fixtures can be removed. Therefore. In the first two cases. Where there is a life estate. 2) Security interest must be recorded before mortgage ■ Generally. 1) No security interest unless property is easily removable If the personal property is not removable without substantial damage to the realty. provided that the purchase-money security interest is promptly perfected by recording. However. (3) landlord and tenant or owner and licensee.

2) Negligence A possessor always has a cause of action in negligence for subsidence of her land. However. d. and has an easement to use the entire wall for the support of the remaining part of his building.. that neighbors cannot use their land in such a manner that the surface of the possessor's land subsides. The right of subjacent support means that if someone else owns areas below the surface of the possessor's land (e. a landowner is not ordinarily liable for the negligence of her independent contractor (unless the independent contractor was engaged in an ultrahazardous activity. the possessor has the right to sell. .. By the same token. if that is the case. however. they have an obligation to keep the surface of the possessor's land from subsiding. Each abutting owner owns that part of the wall on his side of the common boundary. The right of lateral support means. These absolute duties of support cannot be avoided by delegation of the job of excavation to an independent contractor. The possessor may recover. Right to support A possessor of land has the right to both lateral and subjacent support for her land. a wall which is part of two separate buildings and is built along a common boundary line). if her neighbor was negligent. 1) Absolute liability A possessor has an absolute right to lateral support of land in its natural condition.e.36 MicroMash MBE In Brief: Real Property b. however. such as blasting). There is no liability for loss of support if the neighbor properly removes water from underneath the possessor's land. This must be done at his own expense. Each party can extend the height or length of a wall. The owner can be held liable for her own negligence in choosing an incompetent independent contractor. She does not. lease. Rights in the subsurface The possessor of land has the exclusive right to the area underneath the surface of her land. or grant an easement in subsurface areas. c.g. have the exclusive right to underground liquids and gases if they flow from her land to the land of another. even if the land would not have subsided in its natural state. Rights in party walls Rights to support also exist in party walls (i. and no contribution is allowed unless the other party undertakes to use the extended wall. generally. The possessor has an absolute right to subjacent support of land in the condition it was in at the time of the conveyance of the right to subjacent areas. mines). and can prevent the mining of minerals even though she cannot reach them from the surface.

the riparian owner's rights are subservient to the public rights in the watercourse. Rights in common resources of light. The usufructuary rights of littoral landowners may also be subject to the public rights in a lake that is used for . 2) Water rights classification of bodies of water and rights therein (a) Watercourses Any water that follows a well-defined course or channel. A watercourse need not have water in it year-round. If a watercourse is navigable. whether aboveground or belowground. If the waterway is nonnavigable. commercial purposes) only insofar as the quality and quantity of the water she returned to the stream were not affected. streams. the priority of all users is determined by the time they began their use. the riparian owner owns the land under the stream (and has full usufructuary rights in the water). later users will have to discontinue their use so that the uses of prior users are protected. light or air that came across the property of his neighbor for the statutory period.MicroMash MBE In Brief: Real Property 37 e. and are generally identical to the usufructuary rights of riparian landowners.g. bathing. Likewise. etc. air. riparian landowner had a right to receive water in its natural state. he usually has a proprietary right in the water. and bodies of water 1) Rights in light and air To be valid.. Many western states have adopted an appropriation system. is a watercourse. the riparian owner had the right to use as much water as she needed for domestic purposes (e. Under such a system. If the land around a lake is held by several persons. with the prior user always having a superior right to continue her use. meaning that he owns the water itself and can sell it as he pleases. an easement for light and air cannot be obtained by prescription merely because one landowner enjoyed. because it is not apparent (and also because it would create uncertainty in titles and hamper development). irrigation of a family garden on riparian land." meaning that a lower. This standard was called the "natural flow doctrine. if the water supply becomes inadequate. unaffected by any nondomestic uses. At common law. the rights of such littoral landowners are only usufructuary. without permission..e. The riparian owner's usufructuary rights vary depending on the theory adopted in the jurisdiction. (b) Aboveground ponds and lakes If a landowner owns all the land around a lake or pond. rights to light and air must be specifically granted in deeds or other conveyances.) and could use water for nondomestic (i. A negative easement for light and air cannot be created by implication. Thus.

a reasonable use standard applies (though it may take a variety of forms or names). (c) Underground ponds and lakes Again. f. the more common issue is whether a landowner can freely rid himself of such waters. etc. absolute (but not exclusive) right to appropriate the water below. In some situations. each landowner above a lake had an unqualified. if a landowner owns all the land above an underground pool or lake. The owner of land on which surface water is found has a proprietary right in it. Basically. (d) Surface water Surface water consists of bodies of water. her rights will depend on the theory applicable in the jurisdiction. Nuisance A possessor of land has the right to quiet enjoyment of the land. which do not follow any regular course or have any identifiable. a landowner will have a right to use underground water for nonriparian uses only if no other riparian uses are effected. she has a proprietary right in the water. and temporary tidal pools and marshlands. trespassers) are more properly the province of trespass actions. At common law. whereby landowners have a right to use underground water to a reasonable extent for domestic. However. Some jurisdictions have adopted a correlative-rights standard which gives a landowner a proprietary right to the proportion of water in an underground lake which corresponds to her proportion of the land over the lake. a rule of capture applied — in effect. a landowner was free to use or sell whatever water she could pump out. If a landowner owns only part of the land above a lake. Thus. Generally. riparian uses. The most common forms of surface water are runoff from rain or snow. a landowner is permitted to repel or remove surface water as long as it does not unduly damage the land of a neighbor. odors. an action in nuisance will lie to prevent (or compensate for) violations of this right. Physical violations (water.). Under such a standard. even a littoral landowner must acquire a permit to protect his usufructuary rights. In most jurisdictions today. Some of the western states that have established appropriation systems have also applied it to lakes and ponds. regular boundaries. as discussed immediately above. Most jurisdictions have now gravitated to a reasonable-use standard.38 MicroMash MBE In Brief: Real Property recreational or commercial purposes. actions of nuisance will only lie for nonphysical invasions (noise. .

and frequency of the interference. odors. etc. and that such interference was unreasonable. as coterminous with the scope of the sovereign's police power. plaintiff's injury must be of a different kind than that of the general public. D. fumes. excessive light. . extent. Traditionally. smoke. The plaintiff may sustain the nuisance action by showing that the defendant substantially interfered with the plaintiff's use and enjoyment of her property. it involves such interferences as noise. However. and (3) the utility and social value of the activity involved. Requirement of a public purpose A purported taking is invalid if it is not for a public purpose. and award plaintiff damages for the diminution in the value of his property. the landowner is entitled to damages for the temporary taking for the period when she was unable to use her property because of the invalid taking. Takings Both the federal government and state governments and instrumentalities of both have the power to take private property by eminent domain. even if the defendant's conduct was not negligent or intentional. If the taking is held invalid because it did not serve a public purpose.MicroMash MBE In Brief: Real Property 39 1) Interference with use and enjoyment The action for nuisance protects the plaintiff from interference with the use and enjoyment of her property. a. That amendment is applicable to the states through the Fourteenth Amendment. the court has construed a public purpose broadly. the Fifth Amendment to the Constitution prohibits the United States from taking private property for public use without just compensation. 3) Relief The court in a nuisance action may grant damages and/or injunctive relief Where plaintiff's harm is insignificant when contrasted with the potential harm to defendant if injunctive relief is granted. TAKINGS AND ASPECTS OF ZONING I. (2) the nature. the court may treat the nuisance as permanent. 2) Reasonableness of conduct Whether defendant's conduct is reasonable or unreasonable involves the balancing of three considerations: (1) the locality and character of the surrounding area. 4) Public nuisance Recovery for personal injury resulting from a nuisance may be had whether the nuisance is private or public. However. If the nuisance is public.

and that it violates the enabling act. however. however. There are two levels on which the validity of a zoning act can be attacked: a constitutional level. The ordinance is not unconstitutional because it constitutes a taking. Any physical intrusion on private property by the government or the establishment of a non-possessory property interest. city. such as an easement. all of these types of zoning controls have been authorized under the police power. where the regulations constitute a taking. and landmark preservation are usually found to be valid regulations under the police power instead of compensible takings. . to preserve the integrity of historical districts by prohibiting building which is out of character in such districts. constitutes a taking. the regulation must also substantially advance the governmental objective being pursued and there must be a tight fit between the regulation and the governmental interest. What constitutes a taking Not all actions by the government that regulate the use of land and in many instances substantially diminish its value are takings for which the government must pay compensation. when it deprives the landowner of all economic use of her land. the government must pay just compensation for the value of land which the ordinance has taken away from the landowner. even if enacted for valid police-power purposes. or when it imposes conditions upon the use of land which are disproportionate to the benefits which are conferred by the government. a. Local government (that of a county. Zoning ordinances. Constitutional attack on zoning ordinance 1) The police-power justification Over the years. To be a valid regulation instead of a taking. A land-use regulation. 2. environmental protections laws. to achieve aestheticism by imposing controls on the style of buildings to prevent the intrusion of buildings that might depress neighboring property values. As courts became less intrusive on legislative judgments on economic matters.40 MicroMash MBE In Brief: Real Property b. however. the court has sanctioned the use of zoning control the density of dwelling units to prevent overcrowding. There are a number of situations. The local ordinance is authorized when the state acting pursuant to the police power enacts a zoning-enabling act. 2) Takings A zoning ordinance can constitute a taking. etc. will constitute a taking if it deprives the owner of all economically viable use of the land. Zoning Zoning is the governmental control of the land-use by governmental action. The only basis upon which the state could justify a regulation depriving the land of all economic value under the police power is to prove that the building on the land would constitute a common-law nuisance. or town) enacts the ordinance that actually controls the use of land.

and thus the ordinance must only bear a rational relationship to a permissible state objective to be upheld. the governmental activity is more administrative in nature. 4) Equal protection Zoning ordinances are fundamentally economic regulations. and setback and height requirements for each district. Actions of a municipality that violate the act's procedural requirements or substantive limitations are invalid. b.MicroMash MBE In Brief: Real Property 41 3) Due process Since the adoption of a zoning ordinance is a legislative act. which neither infringe fundamental rights. If there is an amendment to the ordinance that will only affect a few specific parcels of land. a question is impossible in this area without specific reference to the text of the enabling act. prescribes the uses which are allowed as of right (conditionally allowed and prohibited in each district). owners of land affected are not entitled to notice and hearing. Because enabling acts vary widely. . The proper approach is to test the actions taken under the zoning ordinance against the specific provisions of the enabling act. it is valid. It then sets up an administration and enforcement structure that must be in accordance with the enabling act. Unless the state enabling act runs afoul of one of the constitutional limitations described above. The local ordinance usually divides the municipality into zoning districts. The zoning-enabling act The zoning-enabling act in force in a state sets forth the procedure which a municipality must follow in enacting or amending a local zoning ordinance and contains such substantive limitations on the power of a municipality as the state determines appropriate. Administration of zoning 1) Passing and amending the zoning ordinance The first step in subjecting property to zoning controls is the passage of the local zoning ordinance. and sets forth density regulations. A zoning ordinance can violate substantive due process by infringing upon the associational rights of families. however. nor discriminate by suspect classifications. 5) First Amendment issues A zoning ordinance could be unconstitutional if it improperly limited the right of free speech. If a zoning ordinance operates with respect to a suspect classification the strictscrutiny standard will apply only if the plaintiffs can show that the purpose of the ordinance was to discriminate. The procedure for passage must be in accordance with the state enabling act. not that it has a discriminatory effect. and affected owners will be entitled to procedural due process. c.

ordinances have permitted developers and administrators more flexibility in planning specific uses. III. Planned unit developments permit developers of large parcels to plan mixed uses of varying densities on the property and gain approval of the entire plan by some planning authority in the municipality. . Variances permitting the property to be used for a purpose prohibited by the zoning ordinance are rarely granted whereas dimensional variances are commonly approved. such as a requirement that the use be "compatible" with the neighborhood. REAL PROPERTY CONTRACTS A. Many commercial permits are granted only after some local body reviews the site plan of the development. density. A majority of courts uphold such limitations as long as they are reasonable in length and the property can be economically used after the nonconforming use is phased out. Normally.42 MicroMash MBE In Brief: Real Property 2) Protection of nonconforming uses Property that is in existence at the time a zoning ordinance is enacted or amended and which violates the ordinance either in use. or dimensional requirements is protected as a nonconforming use. 4) Variances There are circumstances dealing with unique conditions on a particular lot of land where compliance with the provisions of the zoning ordinance would create a substantial hardship on the landowner. compliance with such conditions is determined by a zoning board of appeals after a public hearing in which both proponents and neighbors have an opportunity to be heard. usually less than 90 days. Many times these conditions are general. Within a short period of time. 3) Conditional uses Many zoning ordinances today permit specific uses only if certain conditions are met. 5) Floating zones and planned unit developments As the zoning process has matured over the past seventy years. The buyer does not ordinarily take possession until the contract is fully performed. RELATIONSHIPS INCLUDED The contract for the sale of land is used in two distinct situations. The most common situation is the one in which its function is to bind the parties. Some ordinances provide that non-conforming uses must be amortized and can only continue for a specific period. Floating zones set forth the requirements for a particular kind of use and permit developers to petition the proper authorities to place specific land in those zones. Such uses can usually be modified with permission of the zoning administrative body. usually a zoning board of appeals. the contract is performed by the seller conveying title to the buyer in exchange for the agreed-upon consideration.

Contracts by joint tenants or tenants in common to partition land into separate tracts for each tenant are generally also held to be within the Statute of Frauds. For the contract to be enforceable. an agreement to convey land must meet the following requirements: the agreement must be a valid contract. Generally. there must be language indicating a sale was intended. and (6) option contracts. The part-performance doctrine If a court finds sufficient evidence in the parties' actions of an agreement to convey property. and receives a conveyance only when all of the consideration has been paid. (5) interests created by covenants. a court will order a conveyance of land. Interests In Land Within The Statute Of Frauds Interests in land include: (1) leaseholds. Contracts Associated With Land Not Within The Statute Of Frauds Agreements which create a license as opposed to an easement or covenant. The Enforceability Of A Purchase-And-Sale Agreement In order to be enforceable. and the agreement must satisfy the Statute of Frauds (or the Part Performance Doctrine). 2. However. C.MicroMash MBE In Brief: Real Property 43 The second situation occurs when the contract is used as a financing device. and the purchase price must be included if it has been agreed upon. CREATION AND CONSTRUCTION: THE STATUTE OF FRAUDS The Statute of Frauds requires that any conveyance of an interest in land or promise to convey an interest in land be in writing and signed to be enforceable in a court. even if they were not intended to embody the contract. The document must then be signed by the party to be charged. B. and a promise not to make a will so that an heir will inherit the real estate. part performance is not grounds for an action at law for damages. THE PURCHASE AND SALE AGREEMENT - 1. the parties and the land must be identified. specific performance is the only remedy available. both legal and equitable. infra) are met. (4) easements and profits. In general. makes periodic payments on the purchase price. it will order a conveyance of the land. The buyer takes possession at the time the contract is executed. if the requirements of the doctrine of part performance (discussed. 1. boundary agreements and brokers contracts. (3) present and future interests. without any evidentiary writing at all. a. (2) interests of mortgagor and mortgagee or vendor and purchaser under a specifically enforceable contract. except those of short duration which are expressly excepted by statute. . despite the lack of a writing. it can be said that an agreement to convey land is enforceable only if it is evidenced in a writing or writings that will satisfy the Statute of Frauds. Required contents of the writing(s) Any writing or collection of writings that evidences the agreement will suffice. b. although connected with land are not within the Statute of Frauds.

the seller has the obligation to clear that lien at the time of the closing. Time of performance ("closing") When a purchase-and-sale agreement fixes no date for performance. The requirements of marketable title are discussed below. b. jurisdictions require the purchaser to perform varying combinations of the following acts: (1) payment of the purchase price. and (3) improvements to the land. A purchaser cannot assert a defect that was not brought to the vendor's attention as a justification for the purchaser's failure to perform. (2) possession of the land with the permission of the seller. then the obligations of the parties is governed by the agreement. If the defect is uncurable by the payment of a specified amount of money because another person has some title claim. Payment of the purchase price alone is not sufficient. A purchaser cannot assert a defect that was not brought to the vendor's attention as a justification for the purchaser's failure to perform. the seller is required to deliver marketable title at the closing to all of the property specified in the purchaseand-sale agreement.44 MicroMash MBE In Brief: Real Property In general. a court will presume that the parties intended it to be performed within a reasonable time. Thus. Burdens related to title defects 1) Seller's right to notice of defects When the purchaser finds a defect in the title. The agreement can provide for a lesser quality of title. who will then have a reasonable time to clear the defect. c. 3) Seller's right to notice of defects When the purchaser finds a defect in the title. 2. he must notify the vendor. or that fact can be implied from the circumstances of the contract. Implied Conditions Or Terms a. she must notify the vendor. . A majority of jurisdictions require all three. strict compliance with that date is required only in an action at law (for damages). 2) Seller's burden to clear liens If there is a defect in marketable title created by a lien on the property. Title required If the purchase-and-sale agreement is silent on the matter. If a specific date is fixed. failure to perform on the specified date is usually not grounds for an action for rescission or specific performance. Strict adherence to the date for performance is not required in equity. The most common lien is a mortgage lien that can be cured by use of a portion of the proceeds at the closing. unless the contract specifies that time is of the essence. who will then have a reasonable time to clear the defect.

Marketable Title Required Unless the contract provides otherwise. the purchaser need not go through with the conveyance and may sue for damages. PERFORMANCE 1. If nothing is said about condition and there is no misrepresentation about the condition of the premises. he is in breach of the contract to convey. there are generally no implied warranties. Some agreements give the seller a period of time to cure a title defect and keep the agreement in force during that time. the obligation of the seller is only to convey the premises in their existing condition. If the buyer does not terminate within the specified period. obligations of the seller concerning the physical status of the premises conveyed depends upon the language set forth in the purchase-and-sale agreement. Except for the implied warranty on a new home. If the seller cannot produce marketable title. If there is a factual problem with the title. he must pay the full purchase price. if the buyer elects to take the seller's unmarketable title. she is cannot use the defects as a reason to back out of the agreement. even if he is only obligated to give a quitclaim deed. unless there was fraud involved. Some agreements will require the seller to use good-faith efforts to cure a title defect. except for the covenants of title discussed below incident to a deed. D. unless the price was established on a per-acre basis.MicroMash MBE In Brief: Real Property 45 4) Variance between area owned by seller and area specified in agreement Minor variances between the land promised in the contract to convey and the land conveyable by the seller will not put the seller in breach of contract. The purchaser must rely on express warranties of material fact made by the seller. the buyer can waive the requirement of marketable title and take any title that the seller possesses. 5) Buyer's options when defect incurable The buyer has a right to terminate the agreement and recover his deposit. It is the type of title that a reasonable. The one exception is that a warranty of habitability is implied in every deed from a vendor who is also the builder of the improvements on the land. prudent. and knowledgeable businessperson desiring to purchase the property would accept. and terminate the agreement if the defects are not cured. the facts supporting its marketability must (1) be so conclusive that a judge would not permit a . Most purchase-and-sale agreements provide that the buyer has a period of time to inspect the condition of the premises and terminate the agreement if it has environmental defects or has physical defects. A variance between the area agreed to and actually conveyable also will not usually result in an adjustment of the purchase price. Fitness And Suitability Of The Premises Since the Uniform Commercial Code does not apply to sales of realty. 2. the seller must provide "marketable" title at the closing. Ordinarily. In any event. A marketable title is one reasonably free from doubt both in fact and in law.

Also. However. The minority view is that risk of loss is on the vendor until legal title passes. If the seller breaches. encumbrances have the following effects. Zoning ordinances do not destroy marketable title. If the challenge is one of law. 3. an existing violation of a zoning ordinance likely renders title unmarketable. Defects that render title unmarketable are as follows: a. the purchaser is also entitled to the return of any deposit she has paid. Easements destroy marketable title only if they actually or potentially interfere with the reasonable use of the land. However. An adverse possessor must obtain a judicial decree supporting his title before he has marketable title. Remedies For Breach Of Purchase-And-Sale Agreement a. Risk Of Loss The parties are always free to determine in their agreement who will bear the risk of loss. and (2) be capable of proof whenever challenged. Absent an agreement to the contrary. but only the seller is insured for the loss. Damages Either party is entitled to expectancy damages (the difference between the market value of the property at the time of the closing and the purchase price) if the other party breaches. if the zoning is changed between the time of the purchase-and-sale agreement and the time of the closing. Encumbrances The purchase-and-sale agreement can specifically provide that the conveyance is to be made subject to certain enumerated encumbrances. The Uniform Vendor and Purchaser Act puts the risk of loss on the party in possession. Leasehold interests destroy marketable title. then either the seller must deduct the insurance proceeds from the sale price or he must pay those proceeds to the purchaser. the law in favor of good title must be clear and not debatable.46 MicroMash MBE In Brief: Real Property contrary verdict to stand. Gaps or defects in the chain of title b. 4. some courts would permit the purchaser to rescind the agreement. most jurisdictions hold that the doctrine of equitable conversion governs the risk of loss. if they fail to do so. Dower rights destroy marketable title. Restrictions and equitable servitudes destroy marketable title only if they are more burdensome than the zoning ordinances applicable to the land. . Mortgages and liens destroy marketable title. Inadequate estate c. Where the risk of loss is on the purchaser.

A court may also award incidental damages as part of a judgment for specific performance. INTEREST BEFORE CONVEYANCE 1. Risk of loss The parties are always free to determine in their agreement who will bear the risk of loss. attainment of a mortgage) has not been met. or agreements to convey in which a condition precedent to enforceability (e. providing it bears a reasonable relationship to the seller's actual damages.g. Third-party damage The purchaser can bring a tort action against third parties for any damage to the property committed after the execution of the contract to convey. 2. The Effect Of An Enforceable Purchase And Sale Agreement — The Doctrine Of Equitable Conversion The doctrine of equitable conversion provides that a purchaser who has a valid and binding agreement to convey should be treated as the owner of the property... unenforceable (e.MicroMash MBE In Brief: Real Property 47 b. if they fail to do so. Right of possession and enjoyment Equitable conversion does not give the purchaser a right to possession prior to the time of performance. Rescission E. 3. whichever is appropriate. b. and usually provides that the deposit will be liquidated damages if the buyer defaults. The Closing a. he has the full use of the property and may commit waste on it as long as the value of the property does not fall below the balance due on the purchase price. most jurisdictions hold that once there is a binding purchase-and-sale agreement. . Courts will permit the seller to keep the deposit in the event of a buyer default. a. c. Seller must sign deed The purchaser is entitled to a deed from and actually signed by the seller if the deed is to contain any warranties of title. However. Earnest Money Deposits A purchase and sale agreement typically requires that the buyer deposit a portion of the purchase price in escrow. the purchaser bears the risk of loss if the property is destroyed. c. oral) agreements to convey. even if she does not have possession. meaning that the court will force the breaching party to pay the purchase price or convey the property. If the contract gives the right to possession to the purchaser before the closing. The doctrine does not apply to options to purchase.g. Specific performance Either side can also elect to obtain specific performance.

except those obligations expressly made to survive the closing. the seller may be unable to deliver clear title when the payments have been completed.48 MicroMash MBE In Brief: Real Property b.. The principal difference between the deed of trust and a mortgage is in the method of enforcement. the trustee may be able to sell the property without all of the safeguards required for a foreclosure sale. There are two principal problems with this device from the buyer's viewpoint. the purchaser may sue only on the covenants (e. TYPES OF SECURITY DEVICE 1. F. 2. unless those provisions of the purchase-and-sale agreement are made to survive the deed. b. IV. but will not be the legal owner of the property until she pays the seller the full purchase price in installments and receives a deed. The purchaser will take immediate possession of the property. Effect Of Closing On Purchase-And-Sale Agreement In general. RELATIONSHIPS AFTER CONVEYANCE 1. Land Contracts As A Security Device A purchaser who buys property under an installment contract is in much the same position as a mortgagor. the grantee can only sue for defects in the title based on the covenants of title in the deed. The trustee is to hold the property as security for a debt owed by the owner to a lender. . Mortgages (Including Deeds Of Trust) a. the warranties of title) contained in the deed. a conveyance discharges the obligations arising from the contract to convey. 2. Any promises made by the grantor in the purchase-and-sale agreement are superseded and extinguished by the deed. unless other arrangements are made. The trust instrument will require the trustee to deed the property to the debtor when the obligation is satisfied. First. Deeds of trust A trust deed is a conveyance from the owner of property to a third person in trust. Purchaser's obligation to produce purchase money The purchaser is expected to produce the full purchase price at the time of the closing. REAL PROPERTY MORTGAGES A. After accepting a deed. Mortgage A mortgage is a conveyance of an interest in land for the purpose of securing some obligation that the owner of the land ("the mortgagor") owes to a creditor (the "mortgagee"). or to the creditor in the event of default.g. Title Problems Once the deed is delivered and accepted.

3. the purchaser merely holds title as security for the repayment of the money loaned. the sellerlessee can usually repurchase the property and recover legal title for the amount of the loan still outstanding. There are.) the mortgage is likewise unenforceable and the mortgagor has a right to have the mortgage discharged. a landowner can grant a mortgage to secure any sort of obligation — including a duty to perform services.g. Absolute Deeds As Security. fraud. If the underlying debt is unenforceable (e. B. The obligation is often a debt owed by the mortgagor to the mortgagee. Equitable Mortgages Where a deed. SOME SECURITY RELATIONSHIPS 1.MicroMash MBE In Brief: Real Property 49 Second. however. The Underlying Obligation A mortgage must serve as security for an underlying obligation. Rights of bona fide purchasers from the equitable mortgagee If the deed that is in fact an equitable mortgage has been recorded in the registry of deeds. absolute on its face. A mortgage is enforceable only as long as there is an underlying. Requirements for a mortgage are as follows: a. Procedure to establish an equitable mortgage To establish that a deed is in fact an equitable mortgage. two exceptions — if the debt becomes unenforceable due to a discharge in bankruptcy or due to the running of the statute of limitations. however. the grantor (mortgagor) may introduce parol evidence in an equity proceeding to show that the deed was intended only to serve as a mortgage and that he is entitled to a reconveyance when the debt is paid. and the seller-lessee's rent payments are mortgage payments. Formalities of execution b. Sale Leaseback Arrangements A sale of property accompanied by a lease back to the seller may function as a financing device. Consideration not required . However.. b. the purchase money given to the seller of the land is a loan. 4. she may lose the right to enforce the contract and obtain a deed and also forfeit the payments she has already made. for lack of consideration. the mortgage will continue to be enforceable. the deed is treated as an equitable mortgage. if the purchaser under an installment contract breaches by making a late payment or by failing to make a payment at all. enforceable obligation. duress. was delivered solely as security for a debt. etc. In effect. At the end of the lease. a. a bona fide purchaser from the grantee (mortgagee) can cut off the rights of the grantor (mortgagor).

50 MicroMash MBE In Brief: Real Property 2. The grantor-mortgagor can force the mortgagee to foreclose on the land before pursuing the grantor-mortgagor personally. . even after the mortgagee has foreclosed the equity of redemption and in effect vested title in himself or a purchaser from the mortgagee. In this situation. some states permit the mortgagor to redeem the property for a period of time. however. however. the mortgagor conveys only a lien on the property to the mortgagee. usually two years after the foreclosure sale. The grantee's express promise to pay the mortgage obligation gives the grantor-mortgagor a direct cause of action against the grantee if the grantee fails to pay. he is subrogated to the rights of the mortgagee. the grantee becomes the principal debtor and the grantor-mortgagor becomes a surety. Conveyance Free And Clear Of The Mortgage The grantor-mortgagor can convey the property free and clear of the mortgage if she discharges her obligation to the mortgagee at the time of or prior to the closing. but will retain an "equity of redemption" — the right to have legal title revested in him when he discharges his obligation. 3. The mortgagor also has a possessory right to use the property. 3. Right To Redeem And Clogging The Equity Of Redemption In some states. as long as her use does not constitute waste that would prejudice the security interest of the mortgagee. if the mortgage obligation is not discharged. The purchaser will lose his land. TRANSFERS BY THE MORTGAGOR 1. If the mortgagor pays the lesser of the amount bid at the foreclosure sale or the amount due on the mortgage note and foreclosure costs within the prescribed time. By assuming the mortgage obligation. and may foreclose on the property if the grantee does not pay him back. 2. Conveyance Subject To The Mortgage With The Grantee Assuming The Debt The grantee may expressly promise the grantor-mortgagor that she will pay the mortgage obligation as it becomes due. 4. the mortgagor will deed legal title to the mortgagee. only the grantor is personally liable on the note. If the grantor-mortgagor does pay on the mortgage obligation. Title And Lien Theories Of Mortgages In a so-called title-theory state. and so will be informally expected to pay the mortgage debt. C. and so the mortgagee can sue the grantee directly if the grantee fails to pay. Rights Between Mortgagor And Mortgagee Prior To Default The mortgagor has the full right of possession (including the corollary right to the rents and profits from the land) until default. The mortgagee is a third-party beneficiary of the grantee's promise to pay. In a so-called lien-theory state. Conveyance Subject To The Mortgage The grantor can convey the property without making any special arrangements in regard to the mortgage. the mortgagee or the person buying from him must deed the property back to the mortgagor.

If the note only permits the mortgagor to pay the note with interest in installments over a fixed period of time. However. the mortgagee may agree to substitute the grantee as the obligor and release the grantor-mortgagor from any liability. the term "assign" is sufficient. So. unless the grantor-mortgagor and grantee can arrange to pay off the mortgagee at the time of the sale. except that a holder in due course of the note always has a superior right to the mortgage. Courts have upheld the validity of due-on-sale clauses. Due-On-Sale Clauses In theory. Any other obligation must be conveyed by a contract between the mortgagee and the transferee (or a novation between the mortgagor and the new obligee). TRANSFERS BY MORTGAGEE Mortgagees may transfer both the underlying obligation and the mortgage itself. most mortgages now contain a "due-on-sale" clause that makes the entire mortgage debt due immediately if the grantor-mortgagor conveys the property. the mortgagee need not approve of the conveyance of the property to the grantee or the financial arrangements made between the grantor-mortgagor and grantee. If the obligation is in the form of a negotiable note. E. it will be endorsed and negotiated to the transferee. The first purchaser has the presumed right to both instruments. Such clauses are lawful. DISCHARGE AND DEFENSES When the mortgagor has satisfied his obligations to the mortgagee. Most states impose severe penalties on mortgagees who fail to provide a discharge when they are obligated to do so. In addition the mortgagor can sue for any actual damages suffered by failure to provide a discharge. the two will be transferred together. they must obtain the mortgagee's approval of the sale. is not required to accept satisfaction of the underlying obligation if the mortgage note does not permit prepayment of the mortgage. A mortgagee. In order to accomplish this. however. Novation In a few cases. the mortgage can foreclose. Many states have provisions that in consumer mortgages require the mortgagee to accept prepayment and discharge the mortgage. Words of conveyance. Normally. the grantee and mortgagee would have to enter into a new contract (or "novation"). A conveyance of a mortgage is a conveyance of an interest in property and so must meet the necessary formalities. The mortgagee does not have . 5. the mortgagee can refuse to accept any payment except the installment due and not discharge the mortgage. however. If the entire debt is not paid when the mortgagee exercises his right to call the entire debt. The mortgage note frequently provides for a prepayment penalty if the mortgagor wants to pay the mortgage off ahead of time. are not necessary to transfer the mortgagee's interest in a mortgage. D. he is promptly entitled to receive from the mortgagee a discharge of the mortgage in recordable form so that he can clear his title of the mortgage encumbrance.MicroMash MBE In Brief: Real Property 51 4.

Rights Of Omitted Parties The mortgagee prior to foreclosure must run the title to determine all persons having an interest in the mortgage premises. the mortgagor's equity of redemption is automatically cut off c. and junior mortgage holders. Bill in equity to foreclose This is also called "strict foreclosure. These parties include the original mortgagor. 1. the mortgagor's equity of redemption be cut off b. any attaching creditors. the mortgagee has the power to foreclose on the mortgage. the mortgagee asks the court to set a date for performance of the obligation and to order that. 1) Mortgagee must comply with contractual and statutory provisions In order to foreclose on and sell mortgaged property validly. Foreclosure by entry of action This method is used if the mortgage contains no power-of-sale provision. Foreclosure is the process that extinguishes the mortgagor's equity of redemption and allows the mortgagee to use the mortgaged property to satisfy the underlying debt. . 2) Mortgagee must act in good faith The mortgagee must act in good faith and use reasonable diligence to protect the interests of the mortgagor. any subsequent owner of the property who has received her interest through the mortgagor.52 MicroMash MBE In Brief: Real Property to discharge the mortgage until he receives both the amount due on the note and the prepayment penalty. F. if there is no performance by that date. FORECLOSURE If the mortgagor defaults on the underlying obligation. For example. These parties must be notified of the foreclosure proceeding so that they can object to it if they think the proceeding is improper and so that they can attend the foreclosure sale to protect their interests. 2. At the end of the statutory period. the mortgagee is allowed both to bid on the property at the foreclosure sale and to act as the auctioneer. statutes generally require that the foreclosure sale be by public auction after proper notice to the mortgagor and advertisement of the sale. Types Of Foreclosure a. and any other persons whose interest in the land is shown in the record title." In an equitable proceeding. The mortgagee must enter the land and continue in possession for three years. a mortgage is foreclosed pursuant to a power of sale contained in the mortgage. the mortgagee must adhere strictly to the contractual and statutory requirements for a foreclosure sale. However. Foreclosure under a power of sale Most commonly.

if it is perfected within a reasonable time after annexation of the fixture to realty. Since fixtures may be the separate subject of security interests. bricks) cannot properly be the objects of security interests other than mortgages.g. 1) Fixtures that can be subject to security interests Goods irretrievably incorporated into realty (e. There is one exception. the mortgagee has a right to a deficiency judgment if the property does not bring enough to satisfy his claim. it does make it prudent for the mortgagee to . 2) Priorities of mortgages and security interests Generally. and (3) any surplus goes to the mortgagor. Deficiency judgment In many states. and the costs of foreclosure. Statutory Right Of Redemption Many states allow a mortgagor to recover the property for a reasonable amount of time after the foreclosure sale by paying the amount of the winning bid at the foreclosure sale to the mortgagee or the purchaser at the foreclosure sale. b. she may remove the fixtures. Deficiency And Surplus The proceeds of a foreclosure sale are distributed as follows: (1) to the foreclosing mortgagee goes the sum of the unpaid balance of the obligation. 4. Relationships between competing mortgagees at foreclosure The priorities of mortgagees are determined by the recording statute of the jurisdiction. a purchase-money security interest prevails over even a prior mortgage. The junior mortgagees will have to bid on the property to protect their interests in it. c. however. She will be liable to the mortgagees for any damage done to the property by removal. junior mortgagees and attaching creditors have access to the proceeds. The purchaser at the sale will take the property free of all encumbrances except those senior to the mortgage being foreclosed. whether attached to the realty at the time of the mortgage or later added. (2) then. only a security interest in a fixture that is recorded prior to the mortgage takes priority over the mortgage. 3) Rights of the superior holder of a security interest If the holder of a security interest prevails over the mortgagees. While this procedure makes the property unmarketable for a period of time. a.MicroMash MBE In Brief: Real Property 53 3. there may be competing security interests in the same fixture. the interest up to the time of foreclosure (but not thereafter).. the first mortgage granted is not necessarily the first in priority. in the order of their seniority under the recording statute. Relationship between mortgagees and holders of security interests Mortgages are usually written so that they cover any fixtures. Thus.

1. Possession must notify owner. the possession must be without the owner's permission. the mortgagor and mortgagee can agree that the mortgagor will deed the property to the mortgagee in satisfaction of the mortgage debt. Therefore the mortgagee taking a deed in lieu of foreclosure must make sure that the deed will give her clear title to the property. the possessor must wrongfully possess land. 2) Permissive commencement cases If possession commenced under a lease or in some other permissive manner. 1) Cotenant cases Possession by a cotenant becomes hostile only when the cotenant either physically ousts the other cotenants or effects a constructive ouster of nonpossessory cotenants by expressly informing them that she is asserting exclusive dominion over the property. b. in such a way that the true owner should notice his possession. At common law. The deed in lieu of foreclosure is not a viable option if there are subsequent encumbrances on the property. Possession must be hostile In general. open-and-notorious possession The statute of limitations does not begin to run until the owner actually knows or should know of the possessor's possession. a. Such a procedure is valid. ADVERSE POSSESSION Adverse possession is a doctrine that vests title to property in a person solely by reason of his long-standing possession of the land. or there is activity known to the owner which is inconsistent with the lessee's permissive use of the premises. The legal standard has developed that the owner is put on notice of the possession when the possessor takes open and . Deed In Lieu Of Foreclosure When a mortgage is in default. 5. the period was 20 years. Generally. TITLES A. V.54 MicroMash MBE In Brief: Real Property bid a fair price at the foreclosure sale. for the period of the statute of limitations for ejectment. but need not be hostile in the sense of ill will. then it does not become adverse until there is explicit notification that possession is henceforth adverse. and if done properly will transfer the ownership of the property to the mortgagee. Time When Statute Begins To Run The statute begins to run when the owner becomes or should become aware of the possession. If he bids a nominal price. because the deed will not wipe them out as a mortgage foreclosure will. the property can be redeemed for that nominal price.

The possession can be interrupted by any of the following methods. The possessor only takes the estate of the owners who no longer have a cause of action to eject him. 1) Possession by the owner The possessor's possession must be exclusive of the owner. Effect of owner's disabilities If the owner is disabled at the time his cause of action accrues." as long as the possessor uses the property during the appropriate season for each and every year of the statutory period. the common-law rule is that the statute of limitations does not run against him until the disability is removed. 3. Thus. b. If the possessor first took possession during a life estate or estate for years. the running of the statute is not affected by disabilities later incurred. Seasonal use qualifies as "continuous. However. Requirement Of Continuous Possession The possessor acquires title by adverse possession only if she has been in continuous possession for the statutory period. the statutory period must start all over again. 2) Ouster 3) Judicial action Filing an action for ejectment will terminate the possessor's possession. the statutory period is terminated. Two possessors are not in privity when the second possessor's possession is adverse to the first possessor. The possession required will be the type of possession that the average owner of such land would exercise. Physical presence on the land is indispensable. c. Title Obtained By Adverse Possession The possessor takes a new title. as long as the owner obtains a decree of ejectment. if the owner goes into possession. a bare 20 years of possession will only give him title to those estates. Thus. "Tacking" between successive possessors An adverse possessor is entitled to count the period of possession of a prior possessor towards the statutory period. Any sort of consensual transfer of possession will put two adverse possessors into privity. Interruption of possession If the possessor's continuous possession is interrupted by the owner. 2. if he is in privity with the prior possessor. his title is not subject to the defects found in the record owner's title. a. .MicroMash MBE In Brief: Real Property 55 notorious possession of the property.

3. Elements not generally required 1) Witnesses or acknowledgment 2) Recording 3) Consideration 2. Requirements of a valid deed 1) Signature of the grantor 2) Name of the grantee 3) Words of conveyance 4) Description of the property conveyed b. Property acquired by possession and constructive adverse possession Generally. the grantor need not be the one to place the grantee's name on the deed. A physical transfer of the deed to the grantee most likely indicates that the grantor intended to create an immediate interest in the grantee. irrevocable interest on the grantee. and vice versa. B. the possessor need not remain in possession. and often the additional requirements of the deeds statute of the jurisdiction. Necessity Of A Grantee The grantee need only be identifiable from the deed. However. . The grantor "delivers" the deed at the time that she intends to confer an immediate." she will obtain title to the entire tract. to be valid.56 MicroMash MBE In Brief: Real Property a. under the doctrine of constructive adverse possession. it is possible to have delivery without physical transfer. Delivery There must be a "delivery" of the deed for title to be conveyed. Requirements Of A Valid Conveyance A deed must meet the requirements of the Statute of Frauds. if a possessor enters onto land and takes possession of a part of it under "color of title. even though she didn't possess all of it. a. the possessor acquires title only to the property she has actually possessed. Also. However. b. The grantor may hand over a deed without a grantee's name and the conveyance will be valid for whomever's name later appears as the grantee (assuming that the grantor had the requisite intent to convey at the time he handed over the deed). CONVEYANCE BY DEED 1. The grantee need not sign the deed. Possession no longer required After obtaining title by adverse possession.

b. Thus. she owns the land on the other side or at the end of the road and needs it for access). the grantor will have to overcome a presumption that the deed was delivered. All he need do is execute the deed and somehow manifest intent to make it effective immediately.g. the grantor can physically transfer the deed to the grantee without affecting delivery. Once the deed is delivered and accepted. Delivery without physical transfer A grantor can "deliver" the deed without physically giving it to the grantee. If a deed refers to a plan. and the courses and distances on the plan are to be regarded in determining the true construction of the deed. the following rules of construction will be applied. Covenants Of Title Covenants of title are promises by a grantor in a deed in regard to the title the grantor is conveying. Natural monuments prevail over artificial ones. Physical transfer without delivery By the same token. However. If the grantor hands over the deed without intent to immediately and irrevocably create an interest in the grantee. Land Description And Boundaries Aside from the basic requirement that the property be described in a manner sufficient to identify it in order for the deed to be valid. c. Where different descriptions of land in the same deed are inconsistent. . unless that does not appear to be the grantor's intent and there is a reason she might want to keep an exclusive interest in the road (e. an unconditional transfer of the deed to the grantee's agent will likely qualify as a delivery.MicroMash MBE In Brief: Real Property 57 a. in cases where the grantee has physical possession of the deed. Specific descriptions prevail over general ones. 4. If the grantor conveys property bounded by a road and the grantor owns the fee under the road. Physical transfer to third parties In line with the general rule above. 5. any description of the property in the deed will be important in any subsequent disputes regarding the boundaries of the property. the plan is incorporated into the deed. the deed conveys property to the middle of the road. the grantee can only sue for defects in the title based on the covenants of title in the deed. the deed will not pass title. Natural and artificial monuments both prevail over distances. The same rules as above apply to waterways — the deed is presumed to convey to the middle ("the thread") of a waterway (if the grantor owned the land under the waterway) and any distances are measured from the banks of the waterway. physical transfer to a third party only qualifies as a delivery if the grantor thereby intends to create an irrevocable and immediate interest in the grantee..

the grantor warrants that she has the right to convey the property to the grantee. easements. Types of covenants 1) Present covenants (a) Covenant of seisin Here. whether attributable to her or her predecessors. 2) General warranty deed The general warranty deed contains all of the covenants discussed above. three types of deeds with respect to covenants. b. but where it is given. (c) Covenant against encumbrances Here. except the covenant for further assurances. generally. or other interests in third parties which will diminish the ownership rights of the grantee.58 MicroMash MBE In Brief: Real Property a. the grantor guarantees that her title is good. (b) Covenant of the right to convey Here. 1) Quitclaim deed The quitclaim (or "release") deed contains no covenants. . the grantor warrants that there are no liens. except those listed in the deed. Such a deed makes the grantor liable for any encumbrances or defects in title that existed at the time of the conveyance. and that she will assist in defending that title against claims by third parties. the grantor warrants that the grantee and his successors will not be disturbed in their possession of the property by the grantor or someone with a claim of title superior to that of the grantor. (b) Covenant of warranty By the covenant of warranty. the grantor warrants that he has title to and possession of the property or the interest in property conveyed. It conveys to the grantee whatever the grantor had. 2) Future covenants (a) Covenant of quiet enjoyment By the covenant of quiet enjoyment. (c) Covenant for further assurances This covenant is not common. the grantor promises that he will take whatever steps are necessary to perfect any defects in title. Types of deeds There are. mortgages. without making any representations or promises as to the grantor's title.

For the disposition in any of these cases to be effective. even if the title defect or encumbrance is not discovered until later. and transfers ownership of the property to the persons to whom the property was devised. 2. 2) Who can sue A grantee has a cause of action only against her immediate grantor for a breach of a present covenant. the will acts as an instrument of conveyance. If the property is not specifically devised by the will. Ademption The will only operates on property that is owned by the decedent at the time of death. the statute of limitations starts to run at the time of the conveyance. C. Future covenants are not breached until the grantee's title to the property is seriously and validly disputed. Therefore. then the laws of intestacy of the state in which the property lies govern the devolution of the property to the decendent's heirs. once a grantor has made a future covenant. but the grantor is liable only for defects or encumbrances incurred during his ownership. Thus. There are three circumstances where the devise of the real estate made in the will is ineffective: 1. the grantor warrants only that the property was not encumbered and the title did not become defective during his ownership. Future covenants run with the land. Actions for breach of covenants 1) Time of breach Present covenants are breached at the time of conveyance. and owns real estate in his individual capacity as opposed to owning it as a joint tenant. Exoneration The devise of the real estate is effective only if all of the debts and taxes of the estate can be paid without selling the real estate to satisfy them. and the devisee does not receive other property to compensate her. there must be a probate of the decedent's estate so that the will is allowed and their heirs determined and there is a record of the distribution of the estate. The mere existence of an undisclosed mortgage will not breach a future covenant. the devise is adeemed by extinction. if at all.MicroMash MBE In Brief: Real Property 59 3) Special warranty deed The special warranty deed contains the same covenants as the general warranty deed. the grantee must be threatened with eviction. If the will does not effectively dispose of property. If the decedent sold or otherwise disposed of the property during her lifetime. If the real estate is specifically . CONVEYANCING BY WILL If an individual dies leaving a valid will. In effect. she is liable to any subsequent grantee in her chain of title for any defects or encumbrances that existed at the time she conveyed the property. c. the residuary clause of the will serves as the instrument of conveyance.

even if it is not recorded in the registry of deeds. Judgment liens The priority given to a judgment lien over other instruments depends on the statute in the jurisdiction. Statutes vary with respect to the degree of kindred required between the decedent and the deceased devisee. then it will be sold to satisfy specific and general legacies. although an unrecorded deed is valid as between a grantor and a grantee. Some states require that a judgment be recorded in the registry of deeds before it is a lien on property and it is then governed by the priorities in the recording system. In some states a judgment is a lien as soon as it is rendered by a court. Recording systems give stability to titles by providing a method of verifying a grantor's title and protecting the title of a purchaser who has bought land without knowledge of any prior grantee. If a state . Types Of Priority a. An unrecorded deed is always valid to give good title to the grantee. However. The priority of that lien would be governed by the date of the judgment. PRIORITIES AND RECORDING 1.60 MicroMash MBE In Brief: Real Property devised. at least in regard to the grantor. by intestacy. If the executor must sell to pay the debts or prior legacies. if a grantee does not properly and promptly record his deed. all of the property not specifically bequeathed or devised that is in the residuary estate will be sold before specifically devised real estate to satisfy debts and taxes. The public-recording system provides a method for a purchaser of land to give notice to the rest of the world that he is now the record owner of land. It will lapse if the testator survives the devisee and will be disposed of by the residuary clause of the will. so that no subsequent purchaser from the grantor can rob him of title. 3. If the real estate is part of the residuary. and will abate if there are not sufficient unallocated funds to satisfy both the expenses of the estate and the prior legacies. b. Some states make a judgment a lien against property acquired subsequent to the judgment where it would take priority over other liens filed at that time except for purchase-money mortgages. or a subsequent purchaser without knowledge of his deed may be able to take good title from the grantor. he may lose his title if his grantor later grants the land again to someone else ("the subsequent grantee"). In essence. Lapse A devise is only effective if the devisee survives the testator. or if the devise is to a sole residuary legatee. the devise of real estate in the will is ineffective. All jurisdictions have anti-lapse statutes that provide that a devise to a relative survived by issue will go to the issue if the named relative predeceases the testator. A grantee must promptly and properly record the deed he receives from the grantor. only a properly recorded deed is good against the rest of the world. D. Recording acts A deed need not be recorded to be valid and convey good title.

. Recorded documents An individual records an instrument affecting land by filing it in the registry of deeds for the jurisdiction where the land lies. a transfer. she may lose her title if her grantor later grants the land again to someone else ("the subsequent grantee"). An unrecorded deed is always valid to give good title to the grantee. 2. Protection of bona fide purchasers other than under statutes Since most of the remedies for creditors to set aside conveyances and for holders of unrecorded instruments to try to obtain property from bona fide purchasers are equitable in nature. She will then go to the record books to examine those documents. However. and indexes it according to the system employed in the jurisdiction (as explained below). if a grantee does not properly and promptly record her deed. at least in regard to the grantor. have rights in the property superior to the rights of the transferee. that purchaser has superior rights to the extent of the consideration she furnished. Scope Of Coverage a. c. b." Each instrument is then indexed under the tract designation. or unclean hands. and finds references to the book and page numbers of all documents affecting that tract. The title examiner looks in the tract index under that particular tract. Mechanics of title searches The only way a purchaser can verify the validity and quality of the grantor's title is by using indexes to find all of the documents making up the grantor's chain of title. d. The recorder's office then photocopies the instrument. set forth in the act. They can treat the property as if it were still owned by the transferor and can use it to satisfy their claims against the transferor. Usually the instrument must be notarized and a fee paid. An analysis of the specific provisions of the act follows: A deed need not be recorded to be valid and convey good title. Fraudulent conveyances Almost all states have enacted the Uniform Fraudulent Conveyance Act. 1) The tract index The tract index is used in some highly developed urban areas. or when the conveyance is made to defraud creditors. it is necessary to check for judgment liens in an title search. in a suit which tries to take the property away from him. binds it in a chronological volume. However. the bona fide purchaser may have the equitable defenses of laches. designated creditors. if the property is transferred for some value to an innocent purchaser who does not know that the transaction is a fraudulent conveyance. How these indexes are used depends on the type of index utilized in the jurisdiction. When the owner of property makes a fraudulent conveyance.MicroMash MBE In Brief: Real Property 61 gives automatic lien status to a judgment. All of the land in the jurisdiction is subdivided into small parcels known as "tracts.

" Value means more than nominal consideration. unless it is actually discovered by a title examiner. If the land is in the possession of a stranger.e. (b) Actual notice (c) Inquiry notice A prospective purchaser is expected to inspect the land before buying. a mortgage) is purchased. (a) Constructive notice A promptly and properly recorded and indexed deed is constructive notice to all. When a subsequent purchaser gets superior title 1) Subsequent purchaser must receive a valid deed A subsequent purchaser's deed cannot defeat a prior deed if the subsequent deed is forged or obtained from an incapacitated grantor. all jurisdictions but those which have a pure "race" system of recording. the subsequent grantee must give "value. but does not necessarily mean a fair price.. 2) Subsequent deed must have been purchased In order to qualify as a purchaser. A subsequent purchaser can be notified of a prior purchase by the following three types of notice. it is indexed under the name of the grantor in the grantor index. which is actually two separate indexes — one arranged by the grantor's name and one arranged by the grantee's name. and under the name of the grantee in the grantee index.62 MicroMash MBE In Brief: Real Property 2) The grantor-grantee index The most common type of indexing system is the grantor-grantee index. 3) Subsequent purchaser usually must have purchased without notice In the overwhelming majority of jurisdictions (i. unrecorded conveyance. as long as the loan and the deed are simultaneous.e. discussed below). she must have purchased without notice of the prior. then the grantee has the duty to investigate further or he will not be a bona fide purchaser. c. An improperly recorded or indexed deed is usually held not to be constructive notice. 4) Subsequent purchaser may have to record first Whether the subsequent purchaser must record her deed to prevail over the prior deed depends on the type of recording system employed in the jurisdiction. a subsequent purchaser must be a bona fide purchaser to prevail — that is. When an instrument is brought to the registrar's office.. A deed given in exchange for cancellation of a debt is purchased. A deed given as security for a loan (i. .

3. e. Doctrine of shelter Once a subsequent bona fide purchaser has achieved superior title as against a prior grantee. However. in a notice system of recording. in order to prevail over a prior grantee. a subsequent purchaser takes good title by merely purchasing without notice of the prior conveyance. d. it is possible that a valid conveyance might not be recorded until after the grantor has conveyed the property a second time. or prescription. Special Problems a. (b) Race-notice system Under a race-notice system. Under a notice system. the subsequent bona fide purchaser must record first. All other interests must be recorded. the title is transferred automatically to the grantee when the grantor acquires it. but does not actually own the land until after that conveyance. including someone who had notice of the prior conveyance. easements obtained by implication. Instruments recorded out of chain of title 1) The deed recorded early — estoppel by deed Estoppel by deed operates in the situation where an individual has conveyed an interest in land by a warranty deed. a purchaser who is not a bona fide purchaser cannot convey to a bona fide purchaser and then buy the property back to obtain the status of a bona fide purchaser. 2) The instrument recorded late Since the registry of deeds records and indexes instruments by the date they are received at the registry. despite the doctrine of estoppel by deed. rather than by the date of the conveyance. The question then becomes whether a subsequent purchaser can get good title from that same grantor. he can convey that priority to almost anyone. and short-term leases need not be recorded. The majority of jurisdictions hold that a . the majority rule is that a subsequent bona fide purchaser can get good title. necessity. (c) Race system A race system gives good title to whomever records first. Interests affected by recording system Title obtained by adverse possession.MicroMash MBE In Brief: Real Property 63 (a) Notice system A subsequent bona fide purchaser need not record to prevail over a prior deed. Because a person examining title will not find the conveyance from the grantor to the prior grantee in the chain of title. regardless of whether that person had notice of prior conveyances. In such a situation.

there is a flaw in the title. even if properly recorded and notarized and relied upon by bona fide purchasers. If the prior deed is not recorded. However. Forged instruments Forged documents. the doctrine of shelter is inapplicable. Transfers from corporations and by agents A deed signed by an officer of a corporation on its behalf or by an agent for a principal only conveys the interest of the principal if the agent is authorized to sign the document or if the purchaser is protected under some theory of apparent authority or estoppel. A properly recorded and indexed deed defeats all subsequent grantees. e. Likewise. Purchase-money mortgages In some jurisdictions. so that the seller received an unforged deed when he took title. c. Without these documents on record. are ineffective to affect title. b. those statutes would not apply so as to give priority over purchase-money mortgages. the seller who takes back a purchase-money mortgage may be entitled to additional protection. an agent executing a deed for an individual should place on record a power of attorney authorizing the action. and the buyer who takes through a forged instrument will lose to the true owner. even if she did not check the record. the subsequent purchaser can be a bona fide purchaser. d. so that her mortgage is valid against a trustee in bankruptcy even though she did not immediately protect her security interest by recording the purchase-money mortgage.64 MicroMash MBE In Brief: Real Property purchaser does not have constructive notice of a late-recorded instrument that is out of the chain of title. Even if the forged document was back in the chain of title. if there is a statute in the jurisdiction which gives judgments or government liens an automatic attachment against after-acquired property. The common practice when a corporation conveys property is to place on record a corporate vote authorizing the officer to execute the deed on behalf of the corporation. Constructive notice A promptly and properly recorded and indexed deed is constructive notice to all. a subsequent purchaser need not actually check the registry of deeds to attain the status of a bona fide purchaser. . Likewise.

OWNERSHIP A. The life tenant is obligated to pay the interest due on the mortgage during his estate. it is a remainder. ■ A remainder is contingent if there is a condition precedent to its becoming possessory or the holders are unascertained. ■ The holder of an interest after a qualified fee simple determinable or fee simple subject to a condition subsequent cannot enjoin the holder of the fee simple for waste. to the extent that the property produces or can produce income. ■ If two joint tenants die simultaneously. the estate of each takes one half. the life tenant is responsible for interest and current real estate taxes. . COTENANCY ■ The granting of a mortgage by one joint tenant does not transform the tenancy into a tenancy in common in a state adopting the lien theory of mortgages. C. ■ A conveyance by all joint tenants of an undivided portion of their interest to a third party does not destroy the joint tenancy between them in the portion they retain. LIFE ESTATES ■ Any remainderman (including a contingent remainderman) can enjoin a life tenant from committing waste. but it does in a title-theory state.MicroMash ® BAR REVIEW BAR EXAM ALERTS AT-A-GLANCE REAL PROPERTY I. FUTURE INTERESTS ■ If an interest is created in a third party in the same instrument as the prior possessory interest and can take in possession upon the termination of the prior interest. B. ■ If there is a mortgage on property at the time it is conveyed to a life tenant and a remainderman. and the remainderman is responsible for paying the principal.

TYPES OF TENANCIES ■ A periodic tenancy is terminated by notice (from either the landlord or the tenant) before the beginning of a rental period terminating the tenancy at the end of that period. ■ When a tenant validly assigns a lease. Her heirs take if she dies intestate. ■ If there is a class gift (a gift to children or grandchildren). The persons taking are ascertained and there is no condition precedent to their taking. because heirs cannot be determined until the person's death. . her devisees take her interest if she leaves a will. ■ Only if the landlord. If the grantor does not indicate otherwise. such as a covenant to pay taxes or a covenant giving the tenant a right to purchase the property. ■ If the named vested remainderman dies before the life tenant. ■ The interest in the "heirs" of a living person is contingent. THE LAW OF LANDLORD AND TENANT 1. tenant. ■ An assignee is obligated to pay rent during the time that she possesses the leasehold property. ■ A term for years is terminated at the end of the term without notice by either party. and assignee enter into a novation is the tenant no longer liable for the rent." ■ A future interest can be alienated prior to its becoming possessory. ■ If there is a remainder to the children of a living person and one or more children are in existence. but is not obligated to pay rent if she further assigns her leasehold interest. the class closes at the time any member of the class is capable of taking possession of the gift. the assignee and the landlord (or the landlord's successors) are bound by all of the covenants in the lease." or "subject to partial divestment. D.2 MicroMash MBE In Brief: Real Property Exam Alerts ■ A remainder is vested if it can take whenever and however the previous estate terminates. 2. ASSIGNMENT AND SUBLETTING ■ A tenant is liable to pay rent during the term even if she has assigned her interest in the leasehold. then during the prior estate the interest in the children is "subject to open. ■ A covenant against assignment does not prevent a tenant from subletting the property and vice versa. afterborn members of the class can join the class until the class closes.

2. possibilities of reverter. ■ The time for determining lives in being when the conveyance is by inter vivos deed is at the time of the conveyance. THE RULE AGAINST PERPETUITIES ■ A child conceived but not born at the time of the commencement of the rule will be considered a life in being. ■ The Rule Against Perpetuities invalidates rights of first refusal which might not be exercised within the period of the rule. ■ If an interest is invalid because of the Rule Against Perpetuities. the disposition to the entire class is invalid. ■ Under the common-law Rule Against Perpetuities. or rights of entry for condition broken) or vested remainders. then the grantor or his heirs have a reversion. ■ If there is no ultimate disposition in a will because of an invalid disposition. ■ The time for determining lives in being when the conveyance is by irrevocable inter vivos trust is at the time of the conveyance.MicroMash MBE In Brief: Real Propert Bar Exam Alerts 3 3. If the Rule Against Perpetuities invalidates the interest of one member of a class. . ■ The Rule Against Perpetuities does not apply to interests in the grantor (reversions. the disposition is construed with the invalid gift deleted. it is at the time that the power to revoke terminates (either on the death of the testator or earlier if the power to revoke is relinquished). RENT ■ A tenant who is denied the beneficial use of the property by the landlord and who moves out is not liable to pay the rent on the theory that she was constructively evicted. SPECIAL PROBLEMS 1. ■ If there is an incomplete disposition by conveyance because of an invalidity. any person is irrebuttably presumed capable of having children until death. E. ALIENABILITY ■ A right of first refusal that only requires the seller to sell at market value is not an invalid restraint on alienation. ■ The time for determining lives in being when the conveyance is by will is at the death of the testator. then the testator's heirs take. If the trust is revocable.

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■ A prohibition of a grantee's right to alienate property or a provision forfeiting an interest if the grantee attempts to alienate is invalid. ■ The owner of property can by contract restrict her own right to alienate property.

II. RIGHTS IN LAND
A. COVENANTS ■ The person who imposes a covenant that runs with the land cannot enforce that covenant against a subsequent purchaser unless he is still the owner of some land which was owned by him at the time he imposed the covenant. ■ For a deed covenant to be enforceable against a subsequent owner of the property restricted, the original parties must have intended that it apply to subsequent owners, the subsequent owners must have actual or record notice of the restriction, and the subject matter of the restriction must touch and concern the land. ■ The recording by a grantee of a deed containing a covenant running with the land is a satisfactory substitute for a memorandum signed by the grantee, and the defense that the covenant is unenforceable because of the Statute of Frauds is invalid. ■ If the grantor consistently imposes similar covenants on a group of lots in a subdivision, he has created a common scheme and the owner of any lots burdened by the restrictions can sue the owner of any other lot to enforce the restrictions. ■ If the grantor imposes similar covenants on a group of lots in a subdivision, she has created a common scheme and can be required to impose similar restrictions on all remaining lots in the subdivision, even if she has not promised in writing that she will do so. B. EASEMENTS AND PROFITS 1. EASEMENTS BY NECESSITY ■ An easement by necessity or implication can only be created at the time of the division of a commonly owned parcel. ■ An easement created by necessity ends when the necessity ends, but the end of the reason for creating an express easement does not terminate an express easement. ■ An easement for light and air does not arise by necessity or implication.

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2. EASEMENTS BY PRESCRIPTION ■ An easement by prescription need not be recorded to be effective against purchasers. ■ The scope of an easement by prescription depends upon the scope of the use during the prescriptive period. • Once an easement by prescription ripens with the passage of the appropriate time, continuous use of the easement is not necessary to maintain it. • If use is with the permission of the owner, then no prescriptive rights accrue. If nothing is said, then the use is adverse. ■ The adverse use of the property need not be exclusive to obtain an easement by prescription. 3. SCOPE OF EASEMENTS ■ An easement is overburdened if it is used to benefit land other than the dominant estate. ■ Non-use alone is insufficient to terminate an easement. ■ An easement by grant must be in writing and signed by the grantor to be valid. ■ An easement by grant must be recorded in order to bind bona fide purchasers of the benefited land. ■ An appurtenant easement is automatically transferred with the dominant estate. ■ A person cannot alienate her interest in an appurtenant easement separate from the alienation of the dominant estate, and the attempted alienation destroys the easement. ■ The holder of an easement has the right to make repairs to property such as pipes and roads that are associated with the easement. ■ A person cannot have an easement on land that she owns in fee simple. ■ If the holder of the dominant estate acquires title to the servient estate, the easement is destroyed by merger and is not reinstated by a later conveyance of the servient estate. ■ If the owner of an interest in land induces another person to rely substantially on the fact that the owner will not assert her property right, the owner will be prevented from later asserting that right by reason of estoppel.

4. PROFITS A PRENDRE
■ A person who holds an exclusive profit a prendre has the right to apportion it.

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■ A profit a prendre can be unlimited in time and is created in the same manner as an express easement.

C. FIXTURES ■ A tenant has the right to remove personal property that he attached to the real
estate, even though the property might otherwise be characterized as a fixture (real estate). ■ A person having an estate of uncertain duration (e.g., a life estate) who plants crops on that land can enter the land and remove the crops at the end of the growing season.

III. REAL PROPERTY CONTRACTS
A. CREATION AND CONSTRUCTION
■ A written brokerage-listing agreement is not a memorandum sufficient to satisfy the Statute of Frauds. ■ Payment of the purchase price by the buyer is not sufficient part performance to take an oral agreement out of the Statute of Frauds. ■ A written memorandum is necessary to change co-ownership from one form to another.

B. MARKETABLE TITLE
■ Restrictions imposed by zoning ordinances do not render title unmarketable. ■ The fact that a buyer would be exposed to nonfrivolous litigation is sufficient to render title unmarketable. ■ An adverse possessor whose title has not been confirmed in a judicial proceeding does not have marketable title. ■ The most useful property device to control the use of land, which does not seriously affect the marketability of title, is usually an easement. However, if the marketability of title is not an issue, a qualified estate is the most certain form of control.

C. INTERESTS BEFORE CONVEYANCE 1. EQUITABLE CONVERSION
■ In a jurisdiction that recognizes equitable conversion, the risk of loss is on the buyer from the time that a binding purchase-and-sale agreement is executed. ■ If a purchase-and-sale agreement is executed in a jurisdiction which recognizes equitable conversion, the buyer's interest is immediately an

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interest in realty and the seller's interest is immediately an interest in the proceeds (i.e., personalty). 2. CLOSING ■ If time is of the essence, then the seller and the buyer must each be prepared to close on the date specified in the agreement, or each is in default.

D. RELATIONSHIPS AFTER CONVEYANCE
■ If a purchase-and-sale agreement is consummated by the delivery of a deed, covenants contained in the purchase-and-sale agreement are no longer enforceable, unless the agreement specifically states that they survive the closing.

IV. REAL PROPERTY MORTGAGES A. TYPES OF DEVICES ■ A deed that is absolute on its face, but was intended only to convey a security
interest, can be reformed by a court into an equitable mortgage, as long as a bona fide purchaser does not now hold title. ■ Other security devices, such as installment sales contracts, will be treated as a mortgage by a court. The usual procedures required for foreclosure and redemption will be applied.

B. TRANSFERS BY MORTGAGE; FORECLOSURE
■ A person who purchases at a mortgage foreclosure takes free of any encumbrances placed on the land subsequent to the mortgage that is being foreclosed. ■ If the mortgagor sells property without paying off the mortgage and the buyer agrees to assume and pay the mortgage, the buyer is primarily liable and the mortgagor is only secondarily liable on the mortgage note. ■ If the mortgagor sells property without paying off the mortgage and the buyer takes subject to the mortgage (i.e., without agreeing to pay the debt), the buyer is not liable for any deficiency judgment on the mortgage note, but can lose the property through foreclosure if she does not pay the mortgage. ■ If a deed (rather than a mortgage) is given to secure the payment of a debt, the deed is an equitable mortgage. Parol evidence can be used to prove that the deed was intended to be a mortgage.

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■ If there is an equitable mortgage, the grantor-mortgagor can require a reconveyance of the property upon payment of the debt unless the granteemortgagee has conveyed the property to a bona fide purchaser. • A mortgage foreclosure is not effective against a junior encumbrance unless notice is given to the holder of the encumbrance. • A purchase-money mortgage (a mortgage from the grantee to the grantor to secure part of the purchase price) which is recorded immediately after the deed takes precedence over any other liens on the property.

V. TITLES A. ADVERSE POSSESSION
■ Open, notorious, and exclusive possession by one cotenant for the statutory period will not establish adverse possession unless the other cotenant was ousted at the beginning of that period. ■ Joint possession with the rightful owner interrupts the adverse possessor's exclusive possession. Adverse possession must start all over again after the rightful owner leaves. ■ If adverse possession commences against a competent adult, the subsequent ownership by a minor or a person with a disability does not interrupt the statutory period. ■ It is possible to obtain title by adverse possession to airspace by projections from a structure that overhangs another's property. ■ Transfer of ownership by the true owner does not interrupt the running of the period of adverse possession. • Transfer of rights from one adverse possessor to a subsequent adverse possessor does not interrupt the running of the period of adverse possession.

B. CONVEYANCING BY DEED 1. VALID CONVEYANCE ■ A forged deed is a nullity conveying no title.
■ The time of the transfer of title dates back to the time when the deed was delivered into a commercial escrow if the transaction is consummated. ■ If the owner of property delivers a valid deed to a grantee, title is transferred to the grantee even though the deed is not recorded. • The subsequent redelivery of the original deed from the grantee to the grantor does not retransfer title to the grantor. A new deed signed by the grantee is required for that retransfer.

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■ A grantee who receives a warranty deed is not required to be a bona fide purchaser to sue his grantor for a breach of a warranty. ■ If the grantee of a validly delivered deed objects to owning the property, title has not been transferred because the grantee has not accepted the deed. 2. LAND DESCRIPTION AND BOUNDARIES ■ Any description of property describing the property deeded with reasonable certainty is sufficient to make the deed effective. A reference to a survey or plan is sufficient, even if the survey or plan is not recorded. In cases of ambiguity, parol evidence is admissible to clarify the parties' intent. A deed that does not sufficiently describe the property, even after consideration of parol evidence, is invalid. ■ Where there is a conflict, a description of the property by monuments prevails over a description of the property by distances. 3. COVENANTS OF TITLE ■ A quitclaim deed contains no covenants. A warranty deed usually contains both present and future covenants. Future covenants run with the land, while present covenants do not. Thus, the grantee may sue only the immediate grantor for breach of a present covenant (such as the covenant against encumbrances). Present covenants are also breached, if at all, at the time of conveyance. ■ The covenant of quiet enjoyment (a future covenant) is breached only when the grantee is ousted from possession of (even part of) the land. ■ If a person grants an interest in land that he does not own to a grantee by a warranty deed, the grantee automatically becomes the owner of that interest as soon as the grantor acquires it, because of estoppel by deed.

C. PRIORITIES AND RECORDING
■ Recording is not required for an effective transfer of interests between the parties to the transaction. • If the owner of property delivers a deed to a grantee and she records immediately, and the owner then delivers a deed of the same property to a subsequent grantee, the subsequent grantee loses because she has (constructive) notice of the prior deed.

■ If the owner of property deeds first to one grantee and then to a second grantee, the issue of which grantee prevails does not turn on whether the first grantee is a bona fide purchaser. That inquiry is relevant only with respect to the second grantee. ■ A deed that is recorded out of order in the chain of title is not constructive notice to a subsequent bona fide purchaser.

the subsequent grantee cuts off the interest of the prior grantee who fails to record if the subsequent grantee is a bona fide purchaser and records prior to the first grantee. ■ In a race-notice jurisdiction. the subsequent grantee cuts off the interest of the prior grantee who fails to record if the subsequent grantee is a bona fide purchaser.10 MicroMash MBE In Brief: Real Property Exam Alerts ■ In a notice jurisdiction. .

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2 2 2 2 3 3 3 3 3 4 5 C. DUTY 1. D. DAMAGES RECOVERABLE FOR INTENTIONAL HARMS 5 5 5 6 6 6 7 7 8 NEGLIGENCE A. 4. HARMS TO THE PERSON I. . 2. 3. 2. 2. 4. 3. DEFENSES TO CLAIMS FOR PHYSICAL HARMS 1. INTENTIONAL TORTS A.MicroMash ® BAR REVIEW MBE IN BRIEF TORTS Table of Contents 1 1 1 1 I. 3. Duty To Act Unforeseeable Plaintiffs Obligations To Control The Conduct Of Third Parties The Reasonable Prudent Person Rules Of Conduct Derived From Statutes And Custom B. 3. 2. Assault Battery False Imprisonment Intentional Infliction Of Mental Distress Trespass To Land Trespass To Chattels Conversion Consent Privilege Immunity Necessity B. 2. STANDARD OF CARE 1. II. HARMS TO PROPERTY 1.

2. DAMAGES IN NEGLIGENCE ACTIONS 17 17 17 III. 2. LIABILITY FOR THE ACTS OF OTHERS Joint Liability Vicarious Liability Master-Servant Relationship Contributory Fault Assumption Of The Risk Imputed Negligence Immunity Damages Recoverable Collateral Source Rule 14 14 15 15 G. Claims Against Owners And Occupiers Of Land 12 Claims For Mental Distress Not Arising From Physical Harm. B. 4. PROBLEMS RELATING TO PROOF OF FAULT INCLUDING RES 8 IPSA LOQUITUR 1. 4. Proximate Cause 11 2. LIMITATIONS ON LIABILITY AND SPECIAL RULES OF 11 LIABILITY 1.C. FLETCHER 1. 3. DEFENSES TO NEGLIGENCE ACTIONS 15 15 16 16 16 H. 1. ABNORMALLY DANGEROUS THE RULE OF RYLANDS V. STRICT LIABILITY A. 3. 2. Trespassing Animals Personal Injury Caused By Wild Animals Or Domestic Animals 17 17 17 17 17 17 C. KEEPING ANIMALS . 2. PROBLEMS RELATING TO CAUSATION 10 10 10 10 11 E. 3. 2. Res Ipsa Loquitur Direct Evidence Of Negligence "But For" Test Substantial Factor Test Harms Traceable To Multiple Causes Apportionment Between Multiple Defendants 9 9 D. Other 13 Intangible Injuries 14 Claims For Pure Economic Loss F. 2. 3. 1. 1. 1. 4.

20 20 20 V. CLAIMS BASED UPON MISREPRESENTATIONS 22 22 23 D. B. CLAIMS BASED UPON INTENTIONAL INTERFERENCE WITH 23 BUSINESS RELATIONS 1. IMPACT OF INSURANCE. 2. WORKERS' COMPENSATION. PRODUCTS LIABILITY A. NUISANCE 1. 2. OTHER TORTS A. 3. 1. B. Interference With Contractual Relations Interference With Advantageous Relations Elements Application To Civil Proceedings 23 24 E. 1. 2.IV. Defamation Invasion Of Privacy Deceit Negligent Misrepresentation 21 22 C. Interference With Use And Enjoyment Reasonableness Of Conduct Relief Public Nuisance 20 20 20 21 21 21 B. NEGLIGENCE STRICT LIABILITY 1. 2. AND 24 "NO-FAULT" SYSTEMS A. 4. Individuals Protected When Strict Liability Is Applicable Defenses Misrepresentation Under Restatement §402B Warranties Under The Uniform Commercial Code 18 18 18 19 19 19 C. MISREPRESENTATION AND WARRANTY THEORIES 1. 3. AREAS AFFECTED BY INSURANCE TYPES OF INSURANCE Hi 24 24 . CLAIMS BASED UPON MALICIOUS PROSECUTION 24 24 24 VI. 2. CLAIMS BASED UPON DEFAMATION AND INVASION OF 21 PRIVACY 1. 2. 2.

C. D. WORKERS' COMPENSATION SYSTEMS "NO-FAULT" SYSTEMS 25 25 iv .

however. or the apprehension thereof (as. and defendant is liable even if she acted with the best of motives (e. Substantial certainty that the contact will result satisfies the intent requirement. for example. Lack of consent Whether the action is for assault or battery or both. does not bar the action if it goes to the essence of the touching. consent induced by defendant's misrepresentation. The doctrine of transferred intent applies to battery as well as to assault. by threatening plaintiff with an unloaded gun). or to create apprehension in plaintiff of an imminent harmful or offensive touching. A conditional threat of immediate harm constitutes an assault if the condition is one which defendant is not privileged to impose under the circumstances. and (3) did so without plaintiffs consent. b. HARMS TO THE PERSON 1. Battery a. Elements In an action for battery. even though not intentional. plaintiff must prove: (1) that defendant placed plaintiff in actual apprehension of an immediate harmful or offensive touching. such invalidation will likewise apply in a civil action. it does. Assault In an action for assault. and allow the participants to sue one another for assault and battery. Likewise. statutory rape). Normally. Intent to bring about the touching does not necessarily mean intent to harm the plaintiff. (2) that defendant intended either to bring about the offensive or harmful touching. (2) actually caused such a harmful or offensive touching. If the plaintiff has not consented. bar the action if defendant's fraud related solely to a collateral matter. 2. INTENTIONAL TORTS A..g. Consent induced by fraud is not effective if it goes to the essence of the touching. expressly or impliedly (by conduct or custom). the touching is unpermitted. and (2) where criminal law invalidates consent in order to protect a class of persons against their own lack of judgment (e. The defendant must have had the apparent present ability to bring about such a contact. two exceptions: (1) a minority of jurisdictions do not recognize consent to a breach of the peace (e.g. fist fighting). plaintiff must prove lack of consent. . however. There are.. unlawful extension of surgery). plaintiff must prove that defendant: (1) intended to cause plaintiff to suffer a harmful or offensive touching.g.TORTS I.. consent bars the action even though the consent was to an unlawful act. the defendant is entitled to act upon reasonable appearances in implying plaintiff's consent. Consent is not purely a subjective matter. and (3) that plaintiff did not consent.

the plaintiff in actual possession (even though wrongfully) is entitled to prevail. in a medical situation. (2) trespass to chattels.2 MicroMash MBE In Brief: Torts The touching may not go beyond the scope of consent given unless. Intentional Infliction Of Mental Distress In an action for intentional infliction of mental distress. embarrassment. b. She is also liable for any harm caused by her trespass to the person or property of the possessor or members of the possessor's family. a showing of negligence is not required. she need not know she is committing a trespass. consent is an affirmative defense. Awareness is not required if plaintiff suffered harm from the confinement. Reckless disregard for the plaintiffs rights will satisfy the requirement of intent. Plaintiff must also prove that defendant acted intentionally. The more recent cases do not require physical harm resulting from the distress. 1. (2) that defendant either herself made an entry onto the land. and (3) that defendant did so intentionally. Common carriers. the doctor extends an operation to protect the life or health of the patient. B. although if it occurs. a good-faith mistake does not excuse the entry. 3. plaintiff must prove that defendant: (1) confined the plaintiff within a limited area from which there was no reasonable and apparent means of escape — merely impeding plaintiffs movement in a certain direction is insufficient. Slight distress. Elements of action In an action for trespass to realty. and public utilities are strictly liable to their patrons for mental distress caused by highly offensive insults. In trespass to property. There is a split of authority on the issue of whether plaintiff must be aware of his confinement at the time it takes place. Nuisance distinguished While trespass to land protects the plaintiff's possessory interest in the land. (2) acted intentionally. or projected an object onto the land. False Imprisonment In an action for false imprisonment. Trespass To Land a. plaintiff must show that defendant's conduct caused plaintiff severe emotional distress. innkeepers. HARMS TO PROPERTY The torts involving intentional harm to property are: (1) trespass to land. 4. plaintiff must establish: (1) that she had possession or the right to possession of the land in question. the Restatement (Second) of Torts requires awareness. Recent cases in some jurisdictions have rejected the distinction between nuisance and . While defendant's entry must be intentional. and (3) conversion. such physical harm is also compensable. and (3) did not have plaintiff's consent. or humiliation is insufficient. the action for nuisance protects the plaintiffs use and enjoyment of his property. Except where defendant is the real owner or the person having the right to possession. even if it is reasonable.

stones) or intangible items (e. the plaintiff in an action for conversion may recover its fair market value. Self-defense Self-defense is a privilege. The state may take a person's property for the public good under its power of eminent domain. chemicals). A person is entitled to use reasonable force to prevent injury to himself. In the alternative the plaintiff may sue for return of the goods taken in an action of replevin. pay the owner for its fair value. c. however.MicroMash MBE In Brief: Torts 3 trespass that is based solely upon whether the invasion is by tangible items (e. it must.. the privilege is. in which case damages are for any actual damage to the property or actual loss of its use. Most states. d. the interference constitutes a trespass to the chattel.g. Under the police power. Conversion Where defendant's interference is sufficient to constitute an act of dominion over the property. 3. In such case. See section V(A) on nuisance. health. Privilege There are two basic affirmative defenses to the torts of intentional harm to the person: privilege and immunity. 2. the issue of consent is discussed with the discussion of the tort itself. Trespass To Chattels Trespass to chattels and conversion both involve an interference with the plaintiff's possessory interest in personal property.g. a.. Consent Since lack of consent is an element in many intentional torts. A person may not use deadly force even to repel deadly force. however. Privilege justifies defendant's conduct so that no tort occurs. C. . if there is a reasonable means of escape. 2. Damages Nominal damages may be recovered for trespass. however. If the dominion over the property is not complete. DEFENSES TO CLAIMS FOR PHYSICAL HARMS 1. Deadly force cannot be used to repel force of a nondeadly nature. the state may destroy or limit the use of property that represents a danger to the public safety. or welfare. even though no actual harm is done to the property. hold that this retreat doctrine does not apply to a person while in his home or place of business. incomplete. in that she must pay damages for any actual harm that she causes. no damages are awarded to the owner. Privilege A person may be privileged to enter the land of another to protect her own person or property.

d. and is thus liable in case of mistake. (2) a person he reasonably suspects of having committed a felony. Defense of a third person A person may use reasonable force to protect a third person. Immunity Immunity does not make defendant's conduct nontortious. A majority of jurisdictions. likely to cause death or serious injury. only if a felony has in fact been committed. nor does it generally apply against a spouse's employer being sued under respondeat superior. a peace officer may arrest without a warrant: (1) a person who has committed or is committing a felony. the shopkeeper cannot continue to hold such person in order to obtain a signed confession. and there is fresh pursuit. however. or (3) a person who has committed or is committing in the officer's presence a misdemeanor which is a breach of the peace. Immunity does not exist between siblings. Arrest without a warrant In the absence of a statute restricting or expanding the common law. may not be used. c. take the view that the actor takes the risk whether the person she is defending would be privileged to defend herself in like manner. a. Discipline of children Parents are privileged to use reasonable force to discipline their children. provided the original taking was wrongful (as opposed to merely a wrongful refusal to return). e. a teacher may use reasonable force to discipline a child.4 MicroMash MBE In Brief: Torts b. A private person may arrest without a warrant for: (1) a felony. The privilege ends when the goods are recovered. In the absence of a statute to the contrary. The force used solely to recover or protect property may not be deadly. and he has reasonable grounds to believe that the person arrested committed the felony or (2) a misdemeanor constituting a breach of the peace committed in the presence of the arresting person. but does bar an action for such conduct on policy grounds. 3. Reasonable grounds as to the commission of a misdemeanor are insufficient. . Interspousal and parent-child The majority of jurisdictions have partially or totally abolished intrafamily immunity. Most jurisdictions grant a privilege to a shopkeeper to use reasonable force to detain a person for a reasonable period upon reasonable grounds that such person has stolen property. traps such as spring guns. Defense of property Reasonable force may be used to recapture property. principally on the basis that the presence of liability insurance precludes any argument that such suits destroy family harmony.

Under the act. the federal government is liable only if a private person would be liable under the law of the place where the tort occurred. disagree. however. Duty may involve either: (1) a duty to act or (2) a duty not to act in a negligent or reckless manner. DUTY The initial step in a negligence action is to establish the duty owed plaintiff by defendant. Further. 4. and the Restatement. Charitable immunity The doctrine of charitable immunity has been abolished in practically all states. Compensatory damages may be recovered for the humiliation. or discretionary responsibilities. the doctrine of municipal immunity is eroding. but not while carrying out governmental functions. Jurisdictions differ on whether punitive damages are covered by a liability insurance policy. However. punitive damages are allowed in many states. A majority of jurisdictions allow assessment of punitive damages against an employer under respondeat superior for the outrageous conduct of its servant. or on a strict liability theory. Municipalities are generally held liable for torts performed while carrying out proprietary functions. Where defendant's conduct is outrageous. for the performance or nonperformance of discretionary functions. and injury to feelings resulting from defendant's conduct. D. Lower officials are protected when performing quasi-judicial. some states have enacted legislation similar to the Federal Tort Claims Act. although some states by statute limit the amount recoverable against a charity. a minority of states. NEGLIGENCE A. No recovery is allowed for intentional torts. as with states. unlike negligence. Governmental immunity The federal government cannot be sued in tort except as allowed under the Federal Tort Claims Act. . This doctrine is. II. allowing suits against the state. Necessity The defense of necessity is available when the defendant's tortious conduct was necessary to avoid greater harm. even though the employer did not order or condone the conduct. but not when performing purely ministerial acts. In most jurisdictions. a state may be sued for torts only to the extent permitted by statute. legislative. Immunity of public officials Judges and high governmental officials enjoy an absolute immunity from tort liability. eroding. indignity.MicroMash MBE In Brief: Torts 5 b. DAMAGES RECOVERABLE FOR INTENTIONAL HARMS Compensatory damages for intentional harm to the person. c. d. do not require proof of actual injury.

This is sometimes called the "Good Samaritan Rule. Obligations To Control The Conduct Of Third Parties a. Creation of duty Some special relationships upon which courts have imposed a duty to aid include: (a) employer-employee. No duty to act generally Absent some special relationship between the parties. having no duty to act. (c) common carrier-passenger. b. A duty to act has also been imposed upon the person in control of the instrumentality which has caused the harm or is causing the harm. . Where. Owners of automobiles The owner of an automobile is not generally liable for the negligence of another person driving the automobile. (b) innkeeper-guest. the owner is present in his automobile which is being driven in a negligent manner. however. Such statutes have been held to replace the family purpose doctrine.6 MicroMash MBE In Brief: Torts 1. (e) social invitor-invitee. the law does not impose a general duty to render aid to another. even though there was no initial negligence on the part of the person in control. but also to anyone who undertakes to rescue persons in peril from the defendant's negligence. A defendant who endangers only herself is also liable for her negligence to anyone who tries to rescue her from her own misconduct. The owner of an automobile is not generally liable for the negligence of the operator simply on the basis of the presence of the owner in the automobile. 2. he must exercise reasonable care." Most states have enacted statutes making the "Good Samaritan Rule" inapplicable to doctors and nurses who render emergency treatment at the scene of an accident. Good Samaritan rule If a person. (d) business invitor-invitee. he may be held for his own negligent failure to take steps to prevent the automobile from being so operated. A further discussion of this issue is contained in the section dealing with proximate cause. enacted statutes holding the owner liable up to a certain amount (consent statutes). Duty To Act a. c. 3. Also. a person who has put into public distribution a product that she subsequently discovers is defective has a duty to warn. Unforeseeable Plaintiffs An individual has a duty to avoid negligent conduct which runs not only to those persons whom the plaintiff can foresee will be harmed if she does not fulfill her duty but also to those unforeseen plaintiffs who are within the scope of the risk of being harmed by her conduct. on the theory that the owner is able to obtain liability insurance. One who has acted negligently is liable not only to direct victims of her negligence. Some states have. however. does undertake to act.

considering her knowledge. Torts of infants Infants are liable for their tortious conduct provided that they have the capacity to commit the particular tort. While an objective standard of reasonableness should still be applied in such cases. knowledge. and intelligence of a reasonable person. he is liable in negligence if. The defendant's conduct is measured by the objective standard of a reasonable person under the circumstances. unforeseeable heart seizure that causes him to lose control of his automobile. airplane. A child's conduct will be measured by that of a person of the child's age. The defendant is not excused simply because she did the best that she could. Where the child's activity involves the operation of an automobile. experience. the standard is one of a reasonable person under all the circumstances and the emergency will be considered as one of the circumstances. or powerboat. and experience. she will be held to an adult standard. The general objective standard Absent some relationship between the parties. while driving. Thus. a comparison is made between the burden of avoiding the occurrence of harm with the probability that harm will occur and the gravity of that type of harm if it does occur. he becomes unconscious and loses control of the automobile.MicroMash MBE In Brief: Torts 7 b. On the other hand. . STANDARD OF CARE 1. However. d. and intelligence. which may create a greater or lesser duty. Minors This rule does not apply to children. she is held to have the knowledge. B. the defendant is not responsible for a sudden. experience. if the defendant knows that he is subject to "spells" which render him unconscious. a person owes others the duty of exercising reasonable care. the physical infirmities of the defendant are considered. c. Basically. parents are not vicariously liable for the torts of their children. What is reasonable depends upon a great variety of factors. Under the common law. Physically and mentally impaired individuals While the mental deficiencies of the adult defendant are not considered in determining the reasonableness of his conduct. The Reasonable Prudent Person a. or where the parent is aware of the child's propensity for violent conduct and fails to take reasonable steps to discipline the child or warn potential victims. Emergencies An actor confronted with a sudden emergency will not be required to act as if he had had adequate time to weigh alternatives and decide on the most reasonable course of action. a parent may be liable for his or her own negligence in entrusting a child with a dangerous instrumentality which results in injury to another. b.

the courts generally consider whether defendant's conduct. 2) Other professionals Other professionals such as lawyers. Many courts have recently held that guest statutes are unconstitutional as a denial of equal protection. 2.8 MicroMash MBE In Brief: Torts e. Automobile operator In some states. Rules Of Conduct Derived From Statutes And Custom a. . or experience than the reasonable person will be held to that higher standard. although technically in violation of the criminal law. the defendant may be negligent because the community standard was set too low. knowledge. Proof of an industry-wide standard or custom is admissible on the issue of the appropriate standard of care. f. Rules of conduct derived from custom Proof of a company safety rule and its violation by an employee is admissible as evidence of negligence. this is either by statute (guest statutes) or common law. A majority hold that the unexcused violation of a criminal statute is negligence per se. Some courts use a "same or similar community" standard. b. Even in negligence per se jurisdictions. and engineers are measured by the care and skill possessed by other members of their profession. C. In any case. PROBLEMS RELATING TO PROOF OF FAULT INCLUDING RES IPSA LOQUITUR Defendant's breach of duty may be proven by circumstantial evidence (res ipso loquitur). This has changed in recent years. Greater knowledge than ordinary reasonable person A person who has greater intelligence. the duty of the operator of a motor vehicle to his social guest in the car is something less than ordinary care. a minority hold that it is evidence of negligence. but is not conclusive on that issue. no effect will be given to the violation unless the harm to plaintiff was of the type that the statute was intended to prevent. while others have completely abandoned a community standard by holding the physician to the standard of the average qualified practitioner nationwide. Even though the defendant acted consistently with the standard of care currently applied in the community. the standard of care for a physician was whether her conduct measured up to the standard of care and skill ordinarily possessed by others in her profession practicing in the same community as the defendant. was nevertheless excused. or direct evidence. Violation of criminal statute Jurisdictions differ on the effect to be given to defendant's violation of a criminal statute. 1) Physicians For years. which includes violation of a criminal statute. architects.

a slight ridge in a carpet) does not establish negligence. The plaintiff. b. With respect to foreign substances on a floor or step.. While most medical malpractice cases require expert testimony. Expert evidence on professional standards or custom in the trade Expert testimony is necessary where plaintiffs claim of negligence involves a matter of such a nature that a jury cannot. Direct Evidence Of Negligence Obviously. Most jurisdictions permit res ipsa loquitur to be used in medical malpractice cases. on the basis of its own common knowledge and experience. it does not establish due care. or the claimed negligent operation of an automobile by the defendant. 1) Defect in premises With respect to premises. 2. (c) the relevancy or materiality of the evidence on the issue of negligence. (b) the sufficiency of the evidence to avoid a directed verdict. the mere existence of a slight defect (e. a. the defendant is not an insurer. but in most instances it must be accompanied by expert testimony. there are some instances where lay persons are capable of determining negligence based upon common knowledge and experience. since the appropriate standard is generally reasonable care and not perfection. the plaintiff may establish the defendant's breach of duty by the introduction of direct evidence of negligence even apart from violations of criminal statutes. must establish by circumstantial evidence that the greater likelihood is that the harm to the plaintiff resulted from defendant's negligence. it is incumbent upon the plaintiff to prove either that the defendant or his .MicroMash MBE In Brief: Torts 9 1. A res ipsa case merely justifies an inference of negligence. The major problems in this area are: (a) the need in some cases for expert testimony. Many factors are involved in that determination. Sufficiency of the evidence The majority of negligence cases involve either a claimed defect or unsafe condition in the premises owned or controlled by the defendant. The issue is whether the defendant's conduct has created an unreasonable risk of harm. determine whether reasonable care has been exercised. Plaintiffs evidence should warrant a finding that defendant at some time had control of the instrumentality which caused the harm. With respect to even ordinary defects. Evidence that defendant's conduct was consistent with the custom in the trade or calling is merely evidence of due care. He is given a reasonable opportunity to discover defects and make repairs. Res Ipsa Loquitur The doctrine of res ipsa loquitur permits the fact finder to find the defendant negligent even though the plaintiff has produced no direct evidence of negligence. including expense. and that the harm was not the result of the conduct of plaintiff herself or of some person other than defendant. rather than from some other cause. however.g. that the harm was such as does not ordinarily occur in the absence of negligence.

and the harm would not have resulted from either act standing alone. She is required to exercise ordinary care to keep her vehicle in a reasonably safe condition. the "but for" test can usually be readily applied to make the defendants jointly and severally liable . D. there are situations where either act alone would have caused the harm. As mentioned previously. An owner is not an insurer that her vehicle is in safe mechanical condition. This is referred to as actual or factual cause. or that they had a reasonable time to discover the presence of the foreign substance and remove it. etc. however. in the absence of a showing of some unreasonable conduct in the driving of the motor vehicle. The mere fact that the defendant's automobile struck the plaintiff or the plaintiff's automobile does not of itself establish negligence. but whether the same harm would have occurred.10 MicroMash MBE In Brief: Torts employees had actual knowledge of the presence of the foreign substance and failed to remove it. whether a defect or foreign substance is involved. the alleged negligent act may be one of many types: excessive speed. Concurrent causes Where the plaintiff is injured from the negligent act of co-defendants who shared a common duty toward the plaintiff or acted in concert with each other. 2) Operation of motor vehicle With respect to the operation of a motor vehicle. plaintiff's injury is the result of the combined negligent acts of two or more tortfeasors. While the "but for" rule of actual causation does not literally apply in these latter situations.. 3. from the other defendant's act). and failed to do so. particularly in medical malpractice cases. Occasionally. it does not generally ipso facto establish negligence. there is no duty on the defendant to warn the plaintiff of obvious conditions. The question is not. despite the fact that the harm would have occurred anyway (i. defendant's conduct cannot be considered the cause of plaintiff's harm if such harm would have occurred even had the defendant not so acted. however. Such expert testimony must indicate a probability (and not merely a possibility) that defendant's negligence resulted in plaintiff's harm. expert testimony is needed to show actual cause. 1. whether a like harm or similar harm would have occurred without defendant's negligent act.e. mechanical defects. Substantial Factor Test In most cases involving joint tortfeasors. "But For" Test Except in some cases involving joint tortfeasors. the courts treat each defendant's act as the cause of plaintiff's harm. inattention. 2. Sometimes. While intoxication may be evidence of negligence. Harms Traceable To Multiple Causes a. PROBLEMS RELATING TO CAUSATION An essential element of plaintiff's negligence action is that defendant's negligent act caused plaintiff's injury.

Occasionally. Also. 1) Foreseeability A majority of courts hold that a defendant is liable only for the foreseeable harm that results from his conduct. however. the plaintiffs harm may result from two independent acts or events. Where the triers of fact cannot ascertain the amount of damage each wrongdoer has inflicted. joint and several liability). the defendants will be held jointly and severally liable. but it is impossible under the circumstances for the plaintiff to show which of his injuries were caused by each defendant. either alone being insufficient to cause the plaintiffs harm. the courts have treated the defendants as joint tortfeasors. The area of proximate cause may be divided into two categories: (1) harm within the risk. the defendant's negligence will be considered the cause of at least part of the harm. in this situation.MicroMash MBE In Brief: Torts 11 for the full amount of the plaintiffs damages. If the other human agent is another negligent defendant. even though in actuality only one of the defendants has caused the plaintiffs injury. However. Indivisible injury caused by multiple defendants Occasionally. A few states hold that the court should instruct the jury to make a rough apportionment. b. but it is impossible under the circumstances to show which injuries were caused by each defendant. . or. Apportionment Between Multiple Defendants Sometimes the negligent acts of two or more defendants cause separate injuries to plaintiff. although independently. Proximate Cause Courts are less likely to apply the rules of proximate cause strictly in cases of intentional torts. but due to the circumstances it is impossible to determine which defendant caused the plaintiffs injury (as where two defendants fire shotguns in the general direction of the plaintiff but only one hit the plaintiff). will hold the defendants jointly and severally liable for all the injuries. a.. The courts have taken the position that where the defendant's negligent act unites with another event. LIMITATIONS ON LIABILITY AND SPECIAL RULES OF LIABILITY 1. if such apportionment is not possible. Harm within the risk Plaintiff must prove that she suffered personal injury or tangible property damage as a legal result of the defendant's action. E. Most courts. on the ground that each has participated in the infliction of a single indivisible injury. two or more defendants commit negligent acts. 4. and (2) persons within the risk. the defendant can be held liable for even unusual harm if some harm was foreseeable. each probably causing injury to the plaintiff. the jury should apportion the damages equally among the defendants.e. rather than negligence. where two defendants have acted negligently. they are authorized to hold all of the wrongdoers liable for all of the plaintiffs injuries (i.

It also applies where defendant negligently places himself in a position of danger. be foreseeable. Persons within the risk 1) Foreseeable plaintiff — the Palsgraf case The two views of proximate cause from the concept of persons within the risk are set out in the Palsgraf case.g. as long as it was not of such a nature as to take over as the efficient cause of the harm. or limited by public policy considerations. but the Restatement does not require a business purpose for an invitee. . the act must have created an unreasonable risk of harm to plaintiff. will legally break the chain of proximate cause. this includes the duty to make reasonable inspections. b. in fact. even though defendant's act initially created no reasonable risk of harm to plaintiff The only restriction on liability is that the harm may not be too remote in time or space.12 MicroMash MBE In Brief: Torts 2) Sequential harm and intervening acts Some courts adopt the view that a defendant is liable for all of the harm which follows in unbroken sequence from her negligent act. Assumption of risk is no defense. The conduct of the second actor may be reasonably foreseeable in some circumstances even though it is intentional. In a foreseeability jurisdiction. There is a difference of judicial opinion whether one entering a business establishment for a purpose other than one financially benefiting the owner (e. unless the attempted rescue was foolhardy. Thus. which combines with the negligence of defendant to cause plaintiffs injury. 2. This is sometimes referred to as the rescue doctrine. the defendant will be held liable for the entire harm (usually jointly and severally with the second actor) if the conduct of the second actor was reasonably foreseeable. Claims Against Owners And Occupiers Of Land a. The duty extends also to one accompanying a business invitee. even criminal conduct may. and plaintiff is injured while attempting a rescue. defendant is liable even though the second actor's act was not foreseeable. In a jurisdiction holding defendant liable for the direct unbroken consequences of her act. the most common proximate cause problem is whether the intervening negligence of a third party. under some circumstances. 2) Rescue doctrine A person who negligently places another in a position of danger is liable to a third person who comes to the aid of the victim and is injured in so doing. to make a telephone call or to get out of the rain) is a business invitee or a mere licensee. By business invitees The duty of a business invitor to an invitee is ordinary care to keep the premises in a reasonably safe condition.. The dissenting opinion held that a person should be entitled to recover if in fact injured by defendant's negligent act. In Palsgraf the majority held that defendant is liable to plaintiff only if plaintiff was a person to whom harm was reasonably foreseeable when defendant acted.

. Other Intangible Injuries a. A few states have recently abolished all distinctions among business invitees. social guests. and was thus fearful for his or her own safety. holding the owner to a duty of reasonable care to all. By trespassers The duty of a landowner to a trespasser is. Some states hold that they are invitees when they come on the property under the same circumstances as other members of the public and to a part of the premises that is normally open to the public. b. most jurisdictions treat police and firefighters as licensees rather than invitees. the duty of the landowners to social guests and licensees is ordinary care. and licensees. While a few recent cases hold to the contrary. . and for any physical harm resulting from such mental distress despite the absence of any physical impact. 3. to avoid either gross negligence or willful and wanton conduct. Most states hold that with respect to active conduct (as opposed to the condition of the premises). a child). provided that the fetus is born alive.MicroMash MBE In Brief: Torts 13 The duty of ordinary care owed to a business invitee does not apply when the plaintiff goes into areas of the premises to which the invitation did not extend. provided plaintiff was within the zone of physical danger from defendant's negligence. she is only required to make safe those unsafe conditions known to her. There is a split of authority whether a wrongful death action is allowed when the fetus is stillborn. b. Claims For Mental Distress Not Arising From Physical Harm. Also. the landowner owes a duty of ordinary care with regard to active conduct toward discovered trespassers. A majority of states allow recovery provided the injury took place when the fetus was viable (capable of living apart from its mother — approximately 24 weeks). c. or to warn the social guest or licensee of such conditions. Exceptions to this rule include infant trespassers (sometimes referred to as the "attractive nuisance doctrine") and technical trespassers. By social guests and licensees Most states hold that the duty owed to a social guest or licensee does not require the landowner to make reasonable inspections of the premises. The duty of ordinary care to a business invitee extends to using reasonable care to prevent injury to the invitee by the acts of third persons. in most jurisdictions. Negligent infliction of emotional distress Most jurisdictions allow recovery for severe mental distress negligently inflicted.g. Many jurisdictions also allow recovery for mental distress resulting from witnessing injury to a close relative (e. Prenatal injuries Most jurisdictions allow recovery for prenatal injuries whether or not resulting in death.

recovery may be had on a theory of intentional interference with contractual or advantageous relations. Concurrent negligent acts If two or more defendants. LIABILITY FOR THE ACTS OF OTHERS 1. that is. under which recovery is had for the decedent's death. Thus. could have recovered damages for his injury. survival statutes preserve certain claims which decedent had at the time of her death. Also.14 MicroMash MBE In Brief: Torts c. If a joint tortfeasor pays more than his pro rata . Thus. F. Therefore. except for wrongful death actions. had he survived. most base and measure damages on the loss to survivors for such elements as loss of support. The standard for liability in wrongful death is generally derivative. an employer may not normally recover in negligence for injury to an employee. While a few states base recovery on the loss to the decedent's estate. however. recovery for such elements as pain and suffering and medical expenses are recoverable under a survival statute for the benefit of the estate. although obviously plaintiff can collect only up to the amount of the judgment. it is generally held that. 2) Survival statutes Unlike the death statute. if the plaintiff could establish that the defendant acted with the intent to injure the plaintiff. 4. the contributory negligence of the survivor-plaintiff(s) will preclude recovery. loss of consortium. recovery for decedent's death under the death statute goes directly to the survivors. loss of services and companionship. recovery at common law having been denied. whereas generally. Nor may an insurance company recover in negligence the amount which it had paid out on a life insurance policy against the defendant who had negligently caused the death of the insured. bring about harm to the plaintiff. proximate cause does not extend to economic harm suffered by the plaintiff as a result of injury to another individual's person or property. The effect of joint liability is that each defendant is liable for the entire harm. Joint Liability a. by their concurrent negligent acts. where decedent's death resulting from defendant's negligence is not instantaneous. and. In all these situations. the defendants may be held jointly liable. substantive defenses which would have been available against the decedent are available in the death action. Claims For Pure Economic Loss While a person may be liable in negligence for injury to the plaintiffs person or physical property. recovery for wrongful death is statutory. recovery may be had if the decedent. in the case of a spouse. and it is not possible to separate the portions of the harm resulting from each act. Nor may a person recover in negligence for lost wages against a defendant who negligently burned down the plaintiffs place of employment. Wrongful death 1) Damages — standard for liability In almost all states.

Indemnification involves recovery by a nonwrongdoer who has incurred a judgment against the actual wrongdoer or the one responsible for the harm. the master is liable. under respondeat superior a master may obtain indemnification from the negligent servant. 3. Contribution and indemnification Contribution should be distinguished from indemnification. For example. General partners and persons engaged in a joint enterprise for profit are vicariously liable for the torts committed by each other in conducting the business. The test of a master-servant relationship is whether the employee is subject to the employer's right to control the details of the work performed. Contributory Fault a. Where the detour is slight. DEFENSES TO NEGLIGENCE ACTIONS 1. social). The liability of a master for the servant's torts under respondeat superior includes intentional torts. While most jurisdictions have adopted rules of comparative negligence. reasonably foreseen by the master.e. Contributory negligence The defense of contributory negligence means that plaintiffs own negligence contributed proximately to her injury. proration is determined by the number of joint tortfeasors involved. G. for example. even though the servant was paid by a third person. contributory negligence still operates as a complete defense in some jurisdictions. nor is there vicarious liability on one spouse for the tort of the other. Vicarious Liability Vicarious liability is based upon a relationship between the defendant and the one committing the tort. Except where the activity is inherently dangerous. In most jurisdictions. 2. . an employer is not liable for the tort of an independent contractor. Under the borrowed servant rule. The rule does not generally apply to joint enterprises of a noncommercial nature (i. It is not necessary to prove that defendant paid the employee to perform the services in order to establish a master-servant relationship. Contribution involves the sharing of the financial burden among joint tortfeasors. he has the right of contribution against the other joint tortfeasor. Master-Servant Relationship A master is liable for the tort of his servant if the tort occurred while the servant was acting within the scope of his authority. where the intentional tort was committed by the servant while advancing the master's business. It seeks the full amount of the judgment rather than a part of it. as. that is.MicroMash MBE In Brief: Torts 15 share of the judgment. the defendant may be responsible for the servant's tort where defendant controlled the servant in carrying out the work. and not upon relative degrees of fault. even where expressly prohibited by the master.. There is no vicarious liability on the part of a parent for the tort of a child. b. A master is not liable for a servant's tort where the tort occurred while the servant had substantially deviated from his authorized route. a master's liability for the tort of her servant.

4. and the negligence of the plaintiffs spouse will not defeat the plaintiffs cause of action against a third party. the negligent supervision of parents will not act to bar a suit by their child to recover for harm resulting from the negligence of a third party. plaintiff will not recover if her negligence exceeds defendant's. Assumption Of The Risk The defense of assumption of risk requires proof that plaintiff knowingly entered into. plaintiff may still recover a percentage of her damages even though her negligence exceeds defendant's. Under comparative negligence. plaintiff. even though guilty of contributory negligence. plaintiff may recover damages even though guilty of contributory negligence. Last clear chance doctrine The Last Clear Chance Doctrine was designed to mitigate the harshness of the defense of contributory negligence as a complete bar to recovery. . but damages are reduced by the percentage of plaintiffs negligence. The defense applies irrespective of the reasonableness of plaintiffs conduct. could recover provided: (1) plaintiff was in a position of peril. and (3) defendant could then have prevented the harm by the exercise of ordinary care. In states having pure comparative negligence. The exceptions to this rule are that the negligence of the deceased will bar (or reduce) a wrongful death recovery by the decedent's estate and the negligence of the spouse will bar or reduce a claim for loss of consortium. Thus. Imputed Negligence The general rule is that the negligence of one party cannot be attributed to another. In a majority of states which have adopted a modified comparative negligence. Likewise. This defense is being abolished in some states. Thus. a position of danger. Several states have recently adopted comparative negligence as a matter of common law. particularly in the jurisdictions which have adopted comparative negligence. (2) defendant was aware of plaintiffs position of peril and of plaintiffs inability to extricate himself. most states which adopted comparative negligence have abolished the Last Clear Chance Doctrine. Under the Last Clear Chance Doctrine. 2. 3. Comparative negligence Most states which have adopted comparative negligence have done so by statute. c.16 MicroMash MBE In Brief: Torts b. the contributory negligence of a driver cannot be raised by a negligent third party to bar an action by a passenger in the driver's car. Immunity Immunity is also a defense that may be raised in a negligence action as well as an action for intentional tort. or stayed in.

some states by statute also make the owners of domestic pets liable for harm done by trespassing animals.. Justice Blackburn stated that "the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes.e. 2. Collateral Source Rule In most states. ABNORMALLY DANGEROUS Most jurisdictions allow recovery on a strict liability theory for harm resulting from abnormally dangerous activities. past and future. unless the victim was committing a trespass or other tort. ." The rule was modified by the House of Lords. must keep it in at his peril. Fletcher. FLETCHER In Rylands v. KEEPING ANIMALS 1. Personal Injury Caused By Wild Animals Or Domestic Animals Apart from the trespassing situation. or chattels of others which cannot be eliminated by the exercise of utmost care and (2) is not a matter of common usage. and (3) pain and suffering. some states impose strict liability on the owner of a dog for harm done by the dog. past and future. (2) medical expenses. Negligence is required to impose liability on the owner of livestock or a domestic pet unless the owner knew or had reason to know of the animal's dangerous propensities. past and future. Most states also allow recovery for loss of consortium for injury to either the husband or wife. DAMAGES IN NEGLIGENCE ACTIONS 1. III. THE RULE OF RYLANDS V. strict liability is imposed. under the common law. and if he does not do so. By statute. amounts received by injured plaintiffs under medical insurance plans or wage compensation plans are not deducted from damages recovered for medical expenses or impairment of earning capacity. C. in that event. i. STRICT LIABILITY A. Damages Recoverable In a personal injury action. strict liability applies only to harm done by wild animals kept by the defendant. is prima facie answerable for all the damage which is the natural consequence of its escape. land. which confined the doctrine to non-natural uses of the land. Trespassing Animals Apart from statute. B. activity that is not ordinary or appropriate for its locality.MicroMash MBE In Brief: Torts 17 H. 2. owners are strictly liable for harm done by animals trespassing off the owner's land only if the animals constitute livestock or wild animals. this is referred to as the collateral source rule. plaintiff may recover for: (1) diminution of earning capacity. However. Conduct is abnormally dangerous if it: (1) necessarily involves a risk of serious harm to the person.

STRICT LIABILITY All jurisdictions today recognize the liability of a manufacturer for negligence. is determined by ordinary concepts of reasonableness and foreseeability. seller. A defendant can be liable under a negligence products liability theory when his failure to exercise due care causes a product to differ from its intended design and this difference causes the product to be more dangerous than others of its type. The question whether a wholesaler or retailer should inspect goods at all.. even if a product meets the specifications of its designer. Most jurisdictions also recognize the liability of a manufacturer. This type of negligence may result from carelessness in manufacturing (as when a product is improperly assembled) or from a mishandling of the product (as when it is dropped or improperly exposed to the elements). the extent to which the technology in existence at the time of its manufacture could minimize the risks. and the degree to which the consumer could be reasonably expected to appreciate and protect himself from harm. even though selling such product is not its principal business (e. Factors which would weigh in the balance include: (a) the potential dangerousness of the product. but unreasonably dangerous if it is handled differently. In such a case. sellers further down the chain of distribution can be liable if a reasonable inspection would have revealed a product's dangers and they unreasonably failed to protect possible plaintiffs from such dangers. PRODUCTS LIABILITY A. can be held liable for injuries caused by their failure to exercise due care. NEGLIGENCE Sellers of products. if the design unreasonably fails to protect potential plaintiffs from harm. and the kind of inspection that is appropriate. This so-called "negligence in design" requires a careful consideration of whether the defendant could have reasonably foreseen the danger. A product might be suitable for its intended purpose when used properly. B. or supplier for a defective product without any showing of fault and despite the absence of privity. (b) any safety history with regard to the product or predecessors in possession. like anyone else.18 MicroMash MBE In Brief: Torts IV. (c) the presence of any physical evidence of danger (as when the product arrived in a damaged container). Any seller who is physically responsible for the product's dangerous condition can be liable under a negligence theory. Negligence may be found. a defendant can be liable in negligence if he fails to provide adequate instructions or warnings with regard to foreseeable uses to which the product may be put. sale of popcorn at a movie . despite the absence of privity between the manufacturer and the consumer. A supplier may be strictly liable. Liability is based upon either a warranty theory or a theory of strict liability in tort. A breach of this duty can be found in any one of the following circumstances. and (d) the practical ability of the defendant to inspect the product (including costs). In addition.g.

g. if properly prepared and accompanied by proper directions and warnings. defendant failed to warn consumers adequately of its dangerous characteristics (e. 3. however. even when they rely upon a third person (e. Strict liability does not apply to services. Further. a person who is an occasional seller (e. they are liable for a final defective product.g. neither contributory negligence nor assumption of the risk alone constitutes a defense to the manufacturer's or seller's liability based upon either warranty or strict liability. . and the third person causes the product to be defective.MicroMash MBE In Brief: Torts 19 theatre). strict liability may apply to harm caused by the product. are justified by the need for the product. plaintiff.. Further. Such a product is not defective.. sale of automobile by private person to used car dealer) is not strictly liable. Obviousness of the defect is not a defense in defective design cases. 1. negligence must be proved. a dealer) to complete assembly. Defective manufacture or design Strict liability has been applied to so-called "defective design" cases as well as to manufacturing defects.g. even though the product was not defective. The rescue doctrine applies in strict liability cases. Individuals Protected Consumers as well as users (e. Most cases involve automobiles where plaintiff claims that severe injury from a collision could have been avoided by a safer design. nor unreasonably dangerous. unreasonably continues to use the product. Where. the defense of unreasonable assumption of risk is available to defendant. passengers in an automobile) are protected by the strict liability rule.. Failure to warn Strict liability has also been applied where. Misuse of a product does not bar strict liability where the misuse was foreseeable. with knowledge of the defective product. b. In hybrid (serviceproduct combination) situations. however. products which in the present state of human knowledge are incapable of being made safe for their intended and ordinary use.. A few jurisdictions have used plaintiff's contributory negligence to diminish her damage recovery in a strict liability suit even where there was no assumption of the risk. 2. When Strict Liability Is Applicable a. Defenses Usually.g. Unavoidably unsafe products Unavoidably unsafe products. c. These are often referred to as "second collision" cases. Whether the defect was discoverable by a reasonable inspection is irrelevant under strict liability. Manufacturers are strictly liable for defective component parts which are supplied by others but assembled into the final product. the majority rule allows recovery even by a bystander injured by the product. child killed by drinking furniture polish).

every commercial seller warrants that the goods he sells are of "fair average quality within the description" and "fit for the ordinary purposes for which such goods are used" unless this implied warranty of merchantability is clearly disclaimed or modified. Insofar as its applicability to torts questions is concerned. The plaintiff may sustain the nuisance action by showing that the defendant substantially interfered with the plaintiff's use and enjoyment of her property. c. V. and defense issues with regard to this action. Implied warranty of fitness for a particular purpose under U.C.C.C. MISREPRESENTATION AND WARRANTY THEORIES Several potential products liability theories are based upon express or implied assertions concerning the nature and quality of a seller's goods. (3) specific reliance on the warranty is not required so long as it was "part of the basis of the bargain. excessive light. Express warranty under U. odors. b.C. 2. Interference With Use And Enjoyment The action for nuisance protects the plaintiff from interference with the use and enjoyment of her property. This implied warranty of fitness for a particular purpose applies whether or not made by a commercial distributor.C. even if the defendant's conduct was not negligent or intentional." and (4) the plaintiff must fall within the class of people protected by the relevant state's version of §2-313. §2-313 Section 2-313 of the Uniform Commercial Code imposes liability for injuries resulting from a breach of express warranty. are the same as those relating to express warranty as discussed above.C. fumes. §2-314 Under U. it involves such interferences as noise. (2) the warranty need not be made to the public at large. §2-315 When a seller has reason to know of the buyer's particular purpose for certain goods and that the buyer is relying on the seller's skill or judgment to select a product appropriate for such needs.C. etc. smoke.C. and that such interference was unreasonable. OTHER TORTS A. .20 MicroMash MBE In Brief: Torts C. 1. The privity notice. NUISANCE 1. a commercial seller's public misrepresentation of material fact concerning the character or quality of a product is actionable if the plaintiff is injured thereby. §2-314. the seller impliedly warrants that the goods are fit for that use. Warranties Under The Uniform Commercial Code a. Traditionally. Misrepresentation Under Restatement §402B Under §402B of the Restatement (Second) of Torts. Implied warranty of merchantability under U. an express warranty claim is essentially the same as an action under §402B except that: (1) liability can be imposed on any seller (not just on commercial suppliers).

statements concerning public officials and public figures are not actionable unless there is clear and convincing evidence that defendant knew the statement was false. B. and (3) the utility and social value of the activity involved. damages Under the First and Fourteenth Amendments to the United States Constitution. Elements The elements of an action for defamation are: (1) defendant published a false communication of fact concerning the plaintiff which held plaintiff up to scorn and ridicule in the eyes of a respectable minority in the community. the loss of a job.MicroMash MBE In Brief: Torts 21 2. but no punitive damages will be allowed. A person may be a public figure generally or a public figure solely with respect to the matter involved in the publication. 4. b. as for example. but not on a strict liability standard. and frequency of the interference. CLAIMS BASED UPON DEFAMATION AND INVASION OF PRIVACY 1. and its defamatory meaning was understood by the third person. (2) the defamatory matter was communicated to at least one person other than plaintiff herself. Reasonableness Of Conduct Whether defendant's conduct is reasonable or unreasonable involves the balancing of three considerations: (1) the locality and character of the surrounding area. or made the statement with reckless disregard for its truth or falsity. Usually the state-imposed standard will be negligence. plaintiffs injury must be of a different kind than that of the general public. Public Nuisance Recovery for personal injury resulting from a nuisance may be had whether the nuisance is private or public. and (3) if the defamation is slander (oral). plaintiff may recover actual damages and presumed damages. Where plaintiffs harm is insignificant when contrasted with the potential harm to defendant if injunctive relief is granted. someone denied plaintiff an existing or prospective benefit. Relief The court in a nuisance action may grant damages and/or injunctive relief. the court may treat the nuisance as permanent. If the nuisance is public. Pretrial discovery into the thoughts and editorial processes of the alleged defamer is allowed to enable the plaintiff to prove malice. Defamation a. (2) the nature. special damages must be proven. A private person may recover upon a state-imposed standard. Fault requirements. If plaintiff establishes liability on the basis of a standard less than knowledge of falsity or recklessness. as a result of the slander. and award plaintiff damages for the diminution in the value of his property. extent. and does not fall into one of the four categories of slander per se. . Proof of special damages requires a showing that. 3.

Deceit The elements of an action for deceit are: • • • • • the defendant made a misrepresentation of an existing fact. fraud at the time of the statement of intent must be shown. and (4) appropriation of some element of plaintiff's personality for commercial purposes. depending upon the importance of the policy advanced by the privilege. A conditional privilege protects only the nonmalicious publisher of defamatory matter. as for example the unauthorized use of the picture of a famous athlete on defendant's product. while not necessarily defamatory. (3) publication of matters which. Invasion Of Privacy a. The other primary defense in an action for defamation is privilege. (2) publication of matters concerning plaintiff which violate common decencies — recovery under this category is extremely difficult unless the matter published is not newsworthy. with knowledge of falsity or with reckless disregard for truth or falsity (referred to as scienter). the misrepresentation was of a material nature. Misrepresentation While the misrepresentation is usually of an objective fact. place plaintiff in a false light in a way which would be highly offensive to a reasonable person. a. it may involve a misrepresented intention or opinion since there the existing fact is the speaker's state of mind. A misrepresentation may be . or in some cases. b. C.22 MicroMash MBE In Brief: Torts c. Constitutional considerations The constitutional considerations with regard to fault requirements for media defendants set out by the United States Supreme Court in the defamation area apply also in the area of invasion of privacy. placing a listening device in his home — this category does not require a publication of the matter to sustain recovery. is either absolute or conditional. the legal equivalent of scienter. which. even where that person acts maliciously. 2. An absolute privilege protects the person making the defamatory statement. with intent to induce reliance from plaintiff or from a class of which plaintiff is a member. A broken promise. Defense Falsity is an element of the plaintiff's case. standing alone. is not a misrepresented intention. and plaintiff relied upon the misrepresentation to his or her detriment. but truth is still an absolute defense. CLAIMS BASED UPON MISREPRESENTATIONS 1. Categories There are four categories of the tort of invasion of privacy: (1) intrusion upon the plaintiff's physical solitude — for example.

negligently provides erroneous information which is used by the plaintiff to his or her detriment despite the absence of privity between plaintiff and defendant. d. however. CLAIMS BASED UPON INTENTIONAL INTERFERENCE WITH BUSINESS RELATIONS 1. Today. While occasionally a defendant's conduct may be privileged. concealed defect which the buyer could not have discovered by a reasonable inspection. where defendant's conduct was intentional or reckless. Negligent Misrepresentation An action for negligent misrepresentation will lie against a defendant who. that is. Knowledge of falsity Scienter (knowledge of falsity or recklessness) was an essential element of the deceit action at common law. the difference between what plaintiff received and what he would have received if the representation had been true. A distinction. provided that such liability would not expose the defendant to an unlimited liability to an indeterminate number of persons. the difference between the value of what the plaintiff gave up and what he received. Most jurisdictions. Elements The elements of the action for interference with contractual relations are: (1) plaintiff had an existing contract with a third person. 2. that is. Generally. b. (2) defendant knew of the contract.MicroMash MBE In Brief: Torts 23 established by showing defendant's silence when there was a duty to speak. however. Otherwise. Reasonableness of belief Most jurisdictions today do not deny recovery for deceit on the basis that plaintiff was unreasonable in believing defendant's misrepresentations." The reliance must be at least justifiable. D. still exists between misrepresentations of fact and so-called "seller's talk. Damages Damages in deceit may be either "benefit-of-the-bargain" damages or "out-of-pocket" damages. business competition does not justify . a defendant will be held liable despite lack of privity only if the defendant knew that the plaintiff would be likely to rely on the representation. provided such damages can be proved with reasonable certainty. as for example where the seller of property fails to disclose a dangerous. some jurisdictions allow plaintiff to recover at least out-of-pocket damages where the defendant made an unqualified assertion of fact as to her own knowledge concerning a matter which was susceptible of exact knowledge. plaintiff may only recover "out-of-pocket" damages. c. and (3) defendant intentionally interfered with the contract. in the performance of her trade or profession. allow plaintiff to recover "benefit-of-the-bargain" damages. Interference With Contractual Relations a.

It is not based upon liability. (4) development of Workers' Compensation plans. and favorable termination are still present. . unless the means used are unlawful. IMPACT OF INSURANCE. has played a significant role in recent decades in the development of tort law. Elements The elements of an action for malicious prosecution are: (1) defendant procured the initiation of criminal proceedings against plaintiff. (2) defendant did not have probable cause to procure such proceedings. although some courts hold otherwise where the contract was terminable at will. Particularly affected are: (1) the extension of vicarious liability. as. for example. lack of probable cause cannot be inferred from malice. Distinguish — procuring refusal to contract The action for intentional interference with existing contractual relations should be distinguished from the tort of procuring a person's refusal to contract with plaintiff which may. (3) defendant acted with malice. and (5) development of nofault systems. Application To Civil Proceedings Some jurisdictions recognize the action for malicious prosecution in the civil sense. (3) abolition of various immunity doctrines. Medical insurance is a typical form of first-party insurance. be justified on the basis of business competition. the unwarranted initiation of bankruptcy proceedings. While malice may be inferred from lack of probable cause. and (4) plaintiff received a favorable termination in the proceedings. b. Arrest of the plaintiff is not a necessary element of the tort. which pays the insured or designated persons (usually the insured's family) for their loss. AND "NO-FAULT" SYSTEMS A. 2. (2) extension of strict liability for defective products. AREAS AFFECTED BY INSURANCE Insurance. The elements of lack of probable cause. Interference With Advantageous Relations A defendant may be liable in tort for intentionally interfering with a prospective benefit to plaintiff. B. E. interfering with the making of a will in which plaintiff was to be named as a beneficiary. 2. malice. TYPES OF INSURANCE There are basically two types of insurance: (1) First-party insurance. particularly liability insurance. VI. WORKERS' COMPENSATION. CLAIMS BASED UPON MALICIOUS PROSECUTION 1.24 MicroMash MBE In Brief: Torts intentional interference with contractual relations. for example.

an injured employee recovers medical expenses and a percentage of lost wages without having to prove fault and even if the employee himself was guilty of contributory negligence. D.e.MicroMash MBE In Brief: Torts 25 (2) Third-party insurance. the employer is immune from any liability in tort for having caused the employee's injury. operator. it is liability insurance. Beyond that. in which the insurer pays a third person to whom the insured has become liable. C.. even though the victim was guilty of contributory negligence. passenger. WORKERS' COMPENSATION SYSTEMS Under Workers' Compensation. the owner or operator may be liable in tort. The owner or operator of the vehicle is immune from liability up to the prescribed amount. . "NO FAULT" SYSTEMS - Under no-fault a person injured due to an accident arising from the use of an automobile (i. pedestrian) may recover medical expenses and a percentage of lost wages (up to some prescribed maximum amount) without proving negligence. However.

26 MicroMash MBE In Brief: Torts .

BATTERY ■ To recover from battery. defense of others. ■ A shopkeeper has a privilege to reasonably detain someone reasonably suspected of shoplifting. and to eject trespassers. 2. and to eject trespassers. Contact or intent to actually contact is not required. even if there was a mistake. No actual harm is required.MicroMash ® BAR REVIEW BAR EXAM ALERTS AT-A-GLANCE TORTS I. These privileges exist as long as the actor reasonably believed the circumstances called for the conduct. ■ The plaintiff must have been aware of the confinement. INTENTIONAL TORTS A. 3. ■ There is a privilege to use any assault or reasonable battery in self-defense. ■ There is a privilege to use any assault or reasonable battery in self-defense. defense of others. These privileges exist as long as the actor reasonably believed the circumstances called for the conduct. even if there was a mistake. though. ■ Words alone are not enough unless accompanied by an ability and intent to act. the plaintiff must show (1) an intentional and (2) unconsented (3) harmful or offensive (4) touching. ■ The imprisonment must be (1) intentional and (2) without consent to be actionable. FALSE IMPRISONMENT ■ The plaintiff need not resist confinement to have an action for false imprisonment. ASSAULT ■ Intent to cause apprehension of contact is all that is required for the tort of assault. . HARMS TO THE PERSON 1.

CONVERSION ■ Both trespass to chattels and conversion require an intentional interference with the personal property of another. 4. The defendant need only intend to commit the act that constitutes the trespass. the plaintiff can bring an action for conversion to recover the value of the personal property at the time that the defendant first asserted dominion over it. HARMS TO PROPERTY 1.2 MicroMash MBE In Brief: Torts Bar Exam Alerts ■ Any reasonable exit or alternate route from confinement defeats the cause of action. the defendant can also be held liable if she knows of the victim's peculiar sensitivities. B. TRESPASS TO LAND ■ Force need not be used to gain entry. like trespass to land. The fact that the plaintiff did not actually commit the crime does not automatically give rise to a cause of action. However. the defendant need not know that the trespass was wrongful for it to be actionable. ■ Bystanders can recover for emotional distress resulting from an intentional tort to a family member only if the defendant knew the bystander was a witness. . ■ There is a privilege to trespass in emergency situations and to protect one's own property. ■ Only a wrongful arrest constitutes false imprisonment. but consent (even implied consent) will defeat the trespass to land cause of action. ■ Only a substantial interference with personal property can be the basis for an action of conversion. Any lesser interference with personal property is only the basis for a trespass to chattels action to recover damages for the harm done to the chattel and the plaintiff's lost use of the chattel. 2. However. TRESPASS TO CHATTELS. but the trespasser must pay for any damage done by the trespass. INTENTIONAL INFLICTION OF MENTAL DISTRESS ■ The defendant's conduct must be extreme and outrageous such that it would be substantially certain to cause severe emotional distress in a person of normal sensitivities. If the defendant has substantially damaged or lost the personal property or if the defendant refuses to return it after demand has been made.

the defendant is not liable for subsequent injuries just because they would not have happened if not for the plaintiff's weakened condition from the first injury. each is generally ultimately liable only for the part of plaintiff's harm for which he is responsible. B. Only the creator of the peril or a close family member (usually a parent) has any duty to rescue someone in danger.MicroMash MBE In Brief: Tort Bar Exam Alerts 3 II. ■ The defendant can defeat a res ipsa loquiturcase against her by showing that it is just as likely that someone else's negligence caused the plaintiff's harm. the plaintiff's harm must not be too remote). However. NEGLIGENCE A. there must be proximate cause (i. The plaintiff need only show that it is more likely than not that the defendant was negligent (and that there is a causal connection to the plaintiff's harm). though. RES IPSA LOQUITUR ■ The plaintiff can prevail without direct proof of the defendant's negligence if she can prove (or the circumstances alone indicate) that she would not have been harmed if the defendant had not been negligent. DUTY ■ Generally. This is called the Good Samaritan doctrine. but one usually does not have a duty to rescue someone from a danger that he or she did not create. A cause cannot be the "proximate" cause unless it is also the factual cause. D.. However. ■ Even if there is factual causation. CAUSATION ■ The test of factual causation is "but for. ■ Once one undertakes to rescue. C. CONTRIBUTION ■ Where two or more independent defendants are responsible for the plaintiff's harm. one has a duty to act with reasonable care.e. ■ A foreseeable intervening cause is not superseding.e. ■ Res ipsa loquitur is irrelevant if there is direct evidence that the defendant was negligent.. ■ The chain of causation is broken by a superseding intervening cause. An unlawful or negligent act may be foreseeable. the plaintiff can recover all of his damages . ■ Once a plaintiff has recuperated from an injury by the defendant. the plaintiff's harm would not have occurred if not for the defendant's negligence. the defendant is liable for any harm which would have occurred if not for the superseding cause." i. one has a duty to act reasonably.

■ A plaintiff who is injured by a servant may sue the servant and/or the employer. alone. a business invitee was owed a duty of reasonable care. Once this objective test is met. CLAIMS AGAINST OWNERS OF LAND ■ At common law. F. . A licensee (social guest) was only owed a duty to warn of dangers known to the owner or occupant but not obvious to the licensee. ■ The doctrine of "attractive nuisance" only applies if the landowner or occupant has reason to know both that children might come onto the land. NEGLIGENT INFLICTION OF MENTAL DISTRESS ■ A plaintiff can recover for negligent infliction of mental distress only if (a) she experiences some actual physical harm from the defendant's negligence. • A negligent defendant is only entitled to contribution (not complete indemnification) from a joint tortfeasor. Then. LIABILITY FOR THE ACTS OF OTHERS 1. A trespasser was only owed a duty to avoid gross negligence or wanton. their actions would not have caused any harm). willful misconduct. the plaintiff can recover for any emotional harm. ■ Contribution is available between joint tortfeasors no matter what the relative degrees of fault. and that the nuisance might be dangerous to them. the landowner owes a duty of reasonable care to the infant trespasser(s). G. It is not necessary that the children be attracted onto the land by the nuisance. 2. An intentional tort is within the scope of employment if it was committed to further the master's business. or (c) she witnesses harm to a family member. EMPLOYEES AND OTHER AGENTS ■ Employers are liable for the torts of their servants committed within the scope of their employment. An employee is an independent contractor — as opposed to a servant — if the employer does not control the employee's performance. even if it is unusual.4 MicroMash MBE In Brief: Torts Bar Exam Alerts from the defendants if their combined negligence causes more harm than their actions alone would have caused (or even if. (b) she is within the zone of danger. the employer of an independent contractor is not liable for the torts of the independent contractor. INDEPENDENT CONTRACTORS • Generally. • The plaintiff can only recover if the defendant's conduct was sufficient to cause emotional distress in a person of normal sensitivities. Contribution allows a defendant who was held liable to recover a pro rata share of her liability from her joint tortfeasors. E.

the contributory negligence of either the decedent or the beneficiaries will bar recovery.. However. for the negligence of another. that defendant will then have to seek contribution from the joint tortfeasor (based on the joint tortfeasor's share of the negligence). There is said to be a nondelegable duty to see that such activity is performed properly. e. even if the parties are related. ■ The contributory negligence of another party will not be attributed to the plaintiff.. ■ Comparative negligence does not change the rule of joint and several liability between joint tortfeasors. INDEMNIFICATION ■ A right of indemnification exists when a nonnegligent defendant has been held vicariously liable (i. 3.MicroMash MBE In Brief: Tort Bar Exam Alerts 5 ■ However. but her recovery will be reduced by her share of the negligence.. any negligence on the part of the plaintiff would bar his recovery against the defendant. JOINT ENTERPRISE ■ When two parties enter into a joint enterprise. the plaintiff will recover no matter how negligent she was. the negligence of the plaintiff will not defeat the plaintiff's cause of action. a negligent plaintiff could still recover if the defendant had the last clear chance to avoid the accident. However. a servant). COMPARATIVE NEGLIGENCE ■ Under a comparative negligence statute. in some jurisdictions. 2. The nonnegligent defendant has the right to recover all of the amount for which she was held liable from the negligent party. under most wrongful death statutes. she will recover only if her negligence was equal to or less than the combined negligence of the other parties. A plaintiff can recover all of her damages (minus her share of the negligence) from one defendant. they are liable for each other's torts within the scope of the joint enterprise activity. 4. ■ Under a "pure" comparative negligence statute. Under a "hybrid" comparative negligence statute. H.g.e. . an employer is liable for ultrahazardous activity (e. DEFENSES 1. CONTRIBUTORY FAULT ■ Under a contributory (as opposed to comparative) negligence rule. blasting) undertaken by an independent contractor.g. ■ An employer of an independent contractor can also be held liable for her negligence in hiring an unfit contractor.

IV. DAMAGES IN NEGLIGENCE ACTIONS ■ Expert testimony is usually required to prove future medical expenses. III. STRICT LIABILITY A. ■ Assumption of the risk is a defense in strict products liability actions. B. ■ Exercise of due care by the defendant in manufacturing or handling the product will defeat plaintiff's products liability claim in negligence.. even if the defendant's particular damages were unforeseeable. a seller or manufacturer) of a product is strictly liable if: (1) the product was defective when it left the party's hands and (2) that defect causes the plaintiff harm. B.6 MicroMash MBE In Brief: Torts Bar Exam Alerts 3. In such a case. ■ Foreseeable users and even bystanders may recover under a strict liability theory. the plaintiff need not show that the defendant's conduct of the abnormally dangerous activity was negligent to recover. ABNORMALLY DANGEROUS ACTIVITIES ■ There is strict liability for any harm which results from a use of land which (1) is not common to the area and (2) presents a serious risk of harm even if undertaken with due care. NEGLIGENCE ■ Contributory negligence is a defense in a products liability action based on negligence. but contributory negligence is not. PRODUCTS LIABILITY A. ■ A supplier (i. ■ A defendant is liable for all of the damages proximately caused by her negligence. . STRICT PRODUCTS LIABILITY ■ The manufacturer of a defective component is liable for the defective parts included in the finished product. ANIMALS ■ Owners of wild animals are strictly liable for the harm caused by them.e. owners of domesticated animals are only liable for their own negligence regarding the animals.

■ A nuisance is a public nuisance if it interferes with the use and enjoyment of several neighboring parcels. 2. PUBLIC NUISANCE ■ A nuisance is a private nuisance if it interferes with only one neighbor's use and enjoyment of her land. NUISANCE ■ A nuisance exists when the defendant's use of neighboring land unreasonably interferes with the use and enjoyment of the plaintiff's land. That neighbor has a cause of action for private nuisance. However. In general. C. subjective knowledge of the risk and voluntarily assumed it. etc. rather than nuisance. ■ Alteration of the product after it left the defendant's hands can defeat the plaintiff's strict liability action. the cause of action is for trespass. ■ Unavoidably unsafe drugs (including blood) are the basis of strict liability only if the supplier does not notify the physician of the potential dangers. V. 1. one can "move to the nuisance" and still enjoin it or recover damages in some cases. but it is not dispositive.) has the right to sue for a public nuisance. DEFENSES ■ A plaintiff's cause of action is defeated by assumption of the risk only if he had actual.) .MicroMash MBE In Brief: Tort Bar Exam Alerts 7 ■ Exercise of utmost care by the defendant in manufacturing or handling the product will not defeat plaintiff's strict liability claim. unless that misuse was unforeseeable. (That is. a private plaintiff can sue for public nuisance if the harm to that plaintiff from the nuisance is different in kind from the harm to the public (or if a statute gives the neighbor a private cause of action). ■ Misuse by the plaintiff is not a defense. OTHER TORTS A. DEFENSES TO NUISANCE ACTION ■ If there is an actual physical invasion of the plaintiff's land. • A defendant can be held liable for nuisance even if the offending use is not negligent. ■ An assembler is liable for the defective parts included in its finished product. county. only the relevant political subdivision (city. ■ Which use commenced first is a factor to be considered in deciding whether a particular use is a nuisance.

6. FAULT ■ Where a showing of malice is not required. Libel per quod is that which is libelous only when taken in conjunction with facts known by those to whom the libel is published. DEFAMATION 1. 5. PUBLICATION ■ There must be a publication — meaning that the defendant must intend or allow that at least one person (other than the defamer and defamed) receive and understand the statement (even if they don't believe it). LIBEL ■ Some jurisdictions treat libel per se and libel per quoddifferently. sexual misconduct. ■ Some courts will deny any judgment for plaintiff if the defendant's use of the land is socially useful. actual monetary) damages. but will refuse to enjoin such a use.e. 4.. DAMAGES ■ The common law rule is that a plaintiff suing for slander must show special damages unless the slander constitutes slander per se (charging the plaintiff with a crime. a loathsome disease. MALICE REQUIRED ■ A public official or figure must prove "malice" — that the defendant acted with knowledge of falsity or reckless disregard for the truth — in order to recover for defamation (or invasion of privacy). B. . Other courts will award damages. 2. "DEFAMATORY" DEFINED ■ Material is defamatory if it would lower the person's esteem in the eyes of a reputable segment of the community. 7. Libel per se is that which is libelous on its face. These jurisdictions allow recovery for libel per quod only if there are "special" (i. DEFENSES ■ Truth is an absolute defense in a defamation action (and a "false light" privacy action). although it is some proof that the use is reasonable.8 MicroMash MBE In Brief: Torts Bar Exam Alerts ■ The fact that a particular use is permitted by the applicable zoning regulations does not establish that it is not a nuisance. any other plaintiff must at least prove negligence to recover for defamation. or business incompetence). 3.

(A perjury action.. there must usually be an affirmative misrepresentation. ■ Newsworthiness is a defense to the tort of invasion of privacy. INVASION OF PRIVACY ■ Publication is not required for the tort of intentional intrusion upon seclusion. Silence is a misrepresentation only when the defendant had some legal (e. D. newsworthy). MISREPRESENTATION ■ In order to be deceit. Such qualified privileges can be overcome if the statement was made with knowledge that it was false or with reckless disregard for its truth. ■ Truth is not a defense to the torts of invasion of privacy (except "false light" publicity). statements in administrative hearings) are only protected by a qualified privilege. or acted with reckless disregard for its truth or falsity. ■ Publishing information in the public record cannot generally be the basis for a privacy tort. "Actual malice" requires that the plaintiff prove that the defendant either knew that the information was false. ■ A public official or figure must prove "actual malice" to recover for defamation. ■ A statement of opinion is not an actionable misrepresentation. fiduciary) duty to disclose. ■ A defendant can be held liable for giving 'unreasonable publicity to the plaintiff's private life if the material published would be highly offensive to a reasonable person and is not of legitimate public concern (i.MicroMash MBE In Brief: Tort Bar Exam Alerts 9 8.e. is the proper action for lies stated in court) All other privileged statements (those made by an employer to another employer about an employee. Relevant statements made in court hearings are absolutely privileged. .. DEFENSES ■ There is no defamation if the statement was privileged. C. ■ A defendant can be held liable for false-light publicity even if the material published is complimentary (as long as it is untrue).g. not a defamation action.

10 MicroMash MBE In Brief: Torts Bar Exam Alerts .

MicroMash MPRE review for the Multistate Profeisional Responsibility Exam MicroMash MPT Review for the Multistate Performance Test MicroMash MEE Review for the Multistate Essay Exam MicroMash Continuing Legal Education (CLE) Over 100 continuing legal education courses are on-line.. CO 80111-6424 303-799-0099 • Fax: 303-799-1425 email: info@MicroMash.a MicroMash MBE Review for the Multistate Bar Exam MicroMash State Bar lie4tiews for the state portion of the Bar Exam ..com MicroMash publishes a comprehensive line of Bar Exam preparation materials and computerbased continuing legal education courses. n O m . downloadable. and disktbased.MicroMash® Bar Review 6402 South Troy Circle Englewood. .

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