MEE RULE STATEMENTS

Evidence
Relevance
1. Relevant evidence is evidence that has a tendency to make the existence of any fact that
is of consequence to the determination of an action more or less probable than it would be
without the evidence.
2. 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
3. Evidence is relevant if it has a tendency to prove or disprove a material fact at issue.
4. However, under FRE 403, even relevant evidence can be excluded by a judge if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, waste of time, or misleading the jury.

Procedural Issues
1. The standard of review regarding an alleged error in an evidentiary ruling is abuse of
discretion.
2. A trial court’s ruling should be affirmed, even if the court of appeals would make a
different rule, if the challenged ruling lies within the zone of reasonable disagreement.

Policy Exclusions
1. Subsequent Remedial Measures - Evidence of repairs or other precautionary measures
made following an injury is inadmissible to prove negligence. The purpose of the rule is
to encourage people to take these precautionary measures.
a. Evidence of subsequent remedial measures is admissible to: prove ownership,
feasibility of repair, or destruction of evidence.
2. Settlement Offers & Plea Negotiations – evidence of a settlement offer is inadmissible to
prove liability for a disputed claim. The policy behind this rule is to encourage the
settlement of disputes without litigation.
3. Offer to Pay Medical Expenses – evidence that a party offered to pay the injured party’s
medical expenses is not admissible to prove liability for the injury. The rationale behind
this rule is that such offers might be prompted solely by humanitarian motives.
a. Offers to pay medical expenses are inadmissible even if a disputed claim does not
exist at the time of the offer.

Character
1. Character evidence is generally inadmissible to prove that a person acted in conformity
with a particular character trait.
2. A criminal defendant may introduce evidence of a relevant character trait to show his
innocence.
 a. A witness may testify to the defendant’s good reputation (or that he has heard
nothing bad), or may give his personal opinion concerning the trait of the
defendant.
i. NOTE – Testimony that some of witness’s friends, who have only met the
defendant a few times, think the defendant has a certain character trait
does NOT count as reputation as ‘some of his friends’ do not represent that
community at large.
b. A witness may NOT testify to specific acts of conduct of the defendant to prove
the trait in issue
3. Victim’s Prior Sexual Relations – in any criminal or civil rape case, evidence offered to
prove the sexual behavior or sexual disposition of an alleged victim is generally
inadmissible.
a. In civil cases, such evidence is admissible if it is otherwise admissible under the
Federal Rules and its probative value substantially outweighs the danger of harm
to the victim and of unfair prejudice to any party.
4. Character evidence describes a person’s disposition and is generally irrelevant and
inadmissible in a civil case unless character is directly in issue.
5. Habit describes a person’s regular response to a specific set of circumstances.
6. Evidence of habit, if relevant, is admissible to prove that the conduct of a person was in
conformity with that habit.

Hearsay
1. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
a. Hearsay is not admissible unless if falls within an exception or is non-hearsay.
2. Admission by party-opponent – any statement made by or attributable to a party and
offered against that party is not considered hearsay.
3. Hearsay within Hearsay is an out-of-court statement that incorporates other hearsay, and
is admissible ONLY if both the outer hearsay statement and the inner hearsay statement
fall within an exception to the hearsay rule.
4. Prior inconsistent statements are hearsay, admissible only to impeach the witness.
a. EXCEPTION – prior inconsistent statements made under penalty of perjury at a
prior trial, hearing, or other proceeding, or in a deposition, it is admissible non-
hearsay.
5. A declarant’s prior statement identifying a person as someone the declarant perceived
earlier (prior identification) is not hearsay if the declarant testifies at trial and is subject
to cross-examination about the statement.
a. Prior identifications need not have been made at a formal proceeding or under
oath.
b. Photo identifications are within the scope of this rule.
6. Medical Diagnosis or Treatment – a statement that describes a person’s medical history,
past or present symptoms, or their inception or general cause is admissible as an
exception to the hearsay rule if it was made for – and was reasonably pertinent to –
medical diagnosis or treatment.
 7. Business Records – a business record is admissible if it was: (1) made in the regular
course of the business; (2) the regular practice of the business to make the record; (3)
made at or near the time of the event; and (4) made by a person who had a duty to make
the record and who had personal knowledge of the event (or who obtained the
information from another person at the business with personal knowledge and a duty to
report).
a. The record must be authenticated through the testimony or written certification of
a records custodian or other qualified witness.

Lay Witness Testimony

1. Opinions by lay witnesses are generally inadmissible.
2. However, an exception is made if the opinion is: (i) rationally based on the perception of
the witness; (ii) helpful to a clear understanding of the testimony or the determination of
a fact in issue; and (iii) not based on scientific, technical, or other specialized knowledge.
3. A lay witness can testify as to the speed of a moving object, even by testifying that it was
going “fast” or “very fast.”

Impeachment
1. A witness’s credibility may be attacked by any party, including the party calling the
witness.
2. For the purpose of impeaching the credibility of a witness, a party may show that the
witness has, on another occasion, made statements that are inconsistent with some
material part of the witness’s present testimony.
3. An inconsistent statement may be proved by either examination of the witness or by
extrinsic evidence.
a. To prove an inconsistent statement by extrinsic evidence, the witness generally
must be given an opportunity at some point to explain or deny the allegedly
inconsistent statement, and the statement must be relevant to some issue in the
case.
4. When a hearsay statement is admitted into evidence, the party against whom the
statement is offered has the opportunity to impeach the credibility of the declarant by
evidence that would be admissible if the declarant had testified as a witness.
a. The statement is only admissible to impeach the declarant’s credibility, and not as
substantive evidence.
5. Where a prior inconsistent statement was made under penalty of perjury at a prior trial,
hearing, or other proceeding, or in a deposition, it is admissible as nonhearsay.
6. A witness can be impeached on cross-examination by inquiry into a specific act of
misconduct that is probative of truthfulness.
7. A witness cannot be impeached by extrinsic evidence of bad acts.
8. If, on cross-examination, the witness denies the act, extrinsic evidence cannot be offered
to refute the answer.
 9. When a witness has used a writing to refresh his recollection on the stand, the adverse
party can introduce that writing into evidence, BUT, the party questioning the witness and
using the writing to refresh the witness’s recollection cannot introduce the writing.
10. When a person testifies as a witness, that person’s credibility becomes a material issue.
11. A witness’s credibility may be attacked by showing that the witness has an untruthful
character.
12. Evidence relating to a prior bad act may be offered to impeach a witness on cross-
examination if it is “probative of untruthfulness.”
13. “Specific instances of conduct of a witness, for the purpose of attacking or support the
witness’s character for truthfulness may not be proved by extrinsic evidence.”
14. The cross-examiner need not take the first answer a witness offers.
15. When an otherwise inadmissible document is shown to a witness to refresh his
recollection, the witness cannot read the document aloud to the jury.
16. A document used to refresh a witness’s recollection can only be admitted as an exhibit if
offered by the opposing party.
17. Impeachment means the casting of an adverse reflection on the veracity of a witness.
18. A witness can be impeached by showing that she has a poor memory of the events about
which she testifies, and it can be done on cross-examination or by the use of extrinsic
evidence.

Privileges
1. Marital Privilege – provides that either spouse has a privilege not to testify as to a
confidential communication made between spouses during the marriage.
a. The communication must be made in reliance upon the intimacy of the marital
relationship.
b. The privilege survives the marriage.
c. The privilege DOES NOT apply if the communication is revealed to a third party.

Constitutional Law

11th Amendment
1. The 11th Amendment prohibits federal courts from hearing most private actions against
state governments – including actions in which the state is named as a party or in which
the state will have to pay retroactive damages.
2. Congress can remove 11th Amendment immunity as to actions created under the
Fourteenth Amendment.
3. Although the 11th Amendment prohibits most private actions against state governments,
private parties may bring actions to enjoin an officer from future conduct that violates the
Constitution or federal law.
a. This exception includes enjoining an appropriate state official from enforcing an
unconstitutional law.
 4. The 11th Amendment provides that “the Judicial power of the United States” does not
extend to “any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State.”
5. “Official-capacity actions against state officials for prospective relief are not treated as
actions against the State.”
6. Even when a damages claim against the state is barred under the 11th Amendment, a suit
against public officials in their official capacity seeking an injunction may be maintained.

Commerce Clause (Dormant Commerce Clause)

1. State or local regulations that discriminate against interstate commerce to protect local
economic interests are almost always invalid as violations of the negative implications of
the Commerce Clause (or “Dormant Commerce Clause”).
2. A regulation discriminates against interstate commerce if it treats economic interests from
within the state differently from economic interests from outside the state.
3. If a state law that treats local and out-of-state interests alike nonetheless burdens
interstate commerce, it will be valid unless the burden outweighs the promotion of a
legitimate local interest.
4. The Constitution’s grant to Congress of the power to regulate interstate commerce also
limits, by implication, the right of state or local governments to adopt laws that regulate
interstate commerce.
5. A state law that discriminates against interstate commerce in a way “that operates as a
tariff or trade barrier against out-of-state interests” is subject to strict review and is
virtually per se unconstitutional.
6. A nondiscriminatory state law that imposes an “incidental” burden on interstate
commerce will nonetheless be unconstitutional if the burden it imposes is “clearly
excessive in relation to the putative local benefits.”

Equal Protection Clause

1. The Fourteenth Amendment Equal Protection Clause prohibits state and subsidiary state
governments and entities from treating similarly situated people in a dissimilar manner
without adequate justification.
2. This proscription generally does not apply to private action.
3. However, there are some situation in which private action can constitute state action, and
in such cases, the private actor’s action is subject to the Equal Protection Clause.
4. Private action will constitute state action when: (i) the private actor is performing a
traditional and exclusive state function, or (ii) the state is significantly involved in the
private action.
5. The Supreme Court has found only running a town or an election to be a traditional and
exclusive public function.
6. The Supreme Court has found significant state involvement when enforcement of the
private action involves the use of the courts or where private entities are entwined with
government entities.
 7. The Court has found state regulation of an industry – even heavy regulation – does not
make the industry’s action state action.
8. The Court has also found that licensing or providing essential services, such as police or
fire protection does not amount to state action.
9. The Court has found that regulation of a private school does not make the school’s action
state action.
10. The justification needed to uphold government discrimination being challenged under the
Equal Protection Clause depends on the circumstances.
11. When a law discriminates on the basis of sex, the Court applies intermediate scrutiny –
the discrimination will be upheld only if the government can prove that the
discrimination is substantially related to an important government interest.
a. An exceedingly persuasive justification is needed.
b. The interest must be genuine and not hypothesized for litigation, and the
government may not rely on overbroad generalizations about males and females.

State Action
1. The Constitution restricts the government.
2. Constitutional rights, including the Bill of Rights, are rights owed by the government to
individuals.
3. A private entity generally does not owe a duty to abide by the Constitution.
4. There are cases in which a private entity will owe individuals the same rights as the
government.
5. When a private entity undertakes a traditional and exclusive public function, the entity
must abide by the Constitution.
6. Activities such as running an election and running a company town are two examples of
traditional and exclusive public functions which require a private entity to uphold the
same Constitutional rights as the government.
7. The individual rights protections of the Constitution apply only where there is “state
action.”
8. State action can be either direct action by the government or some action by a private
party that is fairly attributable to the government.
9. When a corporation operates a privately owned “company town” that provides essential
services typically provided by a state actor, the public function doctrine applies and the
Constitution binds agents of the town as if they were agents of the government.

First Amendment
1. The First Amendment generally prohibits the government from restricting the content of
speech unless the government can prove the restriction is necessary to achieve a
compelling government interest.
2. As a general rule, it has been held that the First Amendment not only gives a person the
right to say what he wants to say, but also prohibits the government from requiring a
person to say what they do not want to say.
 3. Government regulations of the content of speech must meet strict scrutiny – the
government must prove that it is narrowly tailored to achieve an important or significant
government interest.
4. A regulation of speech will not be upheld if it is overbroad – i.e., prohibits substantially
more speech than is necessary.
5. If a regulation punishes a substantial amount of protected speech judged in relation to its
legitimate sweep, it is facially invalid and cannot be enforced against anyone, including a
person engaging in constitutionally unprotected speech, unless a court has limited
construction of the restriction so as to remove the threat to constitutionally protected
speech.
6. Regulations that are content-neutral are subject to intermediate scrutiny – the regulation
is an important or significant government interest and narrowly tailored to achieving that
interest.
7. Regulations subject to intermediate-scrutiny must also leave open alternative channels of
communications.
8. When expression takes place on government-owned property, government regulation of
the expression is assessed under the public forum doctrine.
9. When a state tries to regulate expressive activity in a traditional public forum, it is
prohibited from doing so based on the expressive activity’s content unless its regulation is
narrowly tailored to achieve a compelling government interest (strict scrutiny).
10. When a state tries to regulate expressive activity without regard to its content,
intermediate scrutiny applies.
11. Under intermediate scrutiny, the true purpose of the regulation may not be the
suppression of ideas, the regulation must be narrowly tailored to achieve a significant
governmental interest, and it must leave open ample alternative channels for expressive
activity.
12. Total bans on an entire mode of expression are subject to strict scrutiny.
13. Absolute prohibition on a particular type of expression will be upheld only if narrowly
drawn to accomplish a compelling government interest.

Unprotected Speech
1. There are certain categories of speech that are not protected by the First Amendment,
including speech that incites imminent lawless action and “fighting words.”
2. The Supreme Court has held that a statute may not constitutionally regulate mere
advocacy of lawless action in the abstract; only speech that incites imminent lawless
action can be regulated.
a. Speech incites imminent lawless action if (1) there is advocacy of illegal conduct
and not just an abstract expression of ideas, (2) the advocacy calls for imminent
lawbreaking, and (3) the lawbreaking is likely to occur.
b. A person cannot be convicted on the basis of a statute that does not distinguish
between abstract expression of ideas and such advocacy.
3. The term “fighting words” has been defined as personally abusive epithets that, when
addressed to an ordinary person, are likely to incite immediate physical retaliation.
 a. “Fighting Words” – words which by their very utterance inflict injury or tend to
incite an immediate breach of the peace.
b. Speech does not come within the fighting-words doctrine unless it is likely to
cause a violent reaction from others.

Public Information/Concern
1. If the matter is one of legitimate public interest, its publication is privileged if it is made
without malice, especially if the information was obtained legitimately, such as a picture
in public.
a. Generally, it is a tort to publish private information about a person – even if it is
true – if a reasonable person would object to having the information made public.
b. Commentary on matters of public concern is afforded the highest level of First
Amendment protection.
2. The First Amendment limits common law suits for defamation that are brought by public
figures.
a. At common law, a plaintiff may bring a defamation action against a defendant
who makes a false statement about the plaintiff.
b. Such persons cannot recover for defamation unless they can show that the
statement was made with actual malice.
i. Under the First Amendment, public figures cannot recover for defamation
unless they can show that the defaming statement was made with actual
malice.
c. Actual malice will be found where the statement is made with knowledge that it is
false or with reckless disregard for its truth.
3. Press/News – The First Amendment does not provide the press with any special right to
trespass – even if the trespass was done in order to investigate a story about a public
figure or a matter of public concern.

First Amendment Rights in Schools

1. The Supreme Court has found that public school students do not shed their constitutional
rights at the door.
2. Because the school setting is special, the Court has also found that First Amendment
rights of public school students may be reasonably restricted to enable schools to
accomplish their mission of educating students and keeping them safe.
3. Students may not be required to say the Pledge when it is against their beliefs.

Contracts & Sales

Governing Law
1. Contracts for services are governed by the common law of contracts.
2. Contracts for the sale of goods are governed by Article 2 of the UCC.
a. Goods are all things moveable at the time they are identified to the contract.
3. The common law applies to contracts for services.
 4. In every contract, the duty to render performance is impliedly conditioned on the other
party rendering his performance or making a tender of his performance.

Contract Formation
1. To form a contract, there must be an offer and an acceptance.
2. An offer is a promise, undertaking, or commitment to enter into a contract.
3. Under the common law, every contract requires consideration to be enforceable.
4. A contract requires mutual assent (usually in the form of an offer and acceptance) and
consideration.
5. An offer is an expression of willingness to enter into a bargain, made in a way that the
other party could reasonably believe that he could conclude the bargain by accepting.
6. An offer must show the offeror’s intent to enter into a bargain and must have definite
terms.
7. An acceptance is an assent to the terms of the offer.
8. Acceptance of an offer must be communicated to the offeror and must be unequivocal.
9. A contract also requires the presence of consideration on both sides of the bargain.
10. Consideration is a bargained-for exchange, and that which is bargained for must have
legal value.

Revocation
1. An offeror is entitled to revoke an offer at will any time before acceptance, even if he has
promised not to revoke for a certain time, unless an exception applies which limits the
offeror’s power to terminate.
2. An option contract is a distinct contract in which the offeree gives consideration for a
promise by the offeror not to revoke an outstanding offer.
3. If a merchant offers to sell goods in a signed writing and the writing gives assurances that
it will be held open, the offer is not revocable for lack of consideration during the time
stated.
a. Article 2 defines a “merchant” as one who regularly deals in goods of the kind
sold or who otherwise by his occupation holds himself out as having knowledge
or skill peculiar to the practices or goods involved.
b. If the term of an offer assuring that the offer will be held open is on a form
supplied by the offeree, that term must be separately signed by the offeror to be
enforced as a firm offer.
4. An offeror may be prevented from revoking an offer based on detrimental reliance. When
an offeror could reasonably except that the offeree would rely to her detriment on an
offer, and the offeree does so rely, the offer will be held irrevocable as an option contract
for a reasonable length of time.

Consideration
1. Consideration is a bargained-for exchange of something of legal value.
2. Any modification to a contract under common law requires new consideration.
 3. Under Article 2, contract modifications sought in good faith are binding without
consideration.
a. Modifications extorted from the other party in bad faith are unenforceable.
b. Good faith means honesty in fact and the observance of reasonable commercial
standards of fair dealing.
4. Under the preexisting duty rule, the promise to perform a legal duty already owed to a
promisor is not consideration.
5. Some courts may allow a contract to be modified without additional consideration if the
modification is “fair and equitable” in view of circumstances not anticipated when the
contract was made.
a. This usually means that a party encountered difficulties in performing bordering
on impracticability.

Statute of Frauds
1. Under the Statute of Frauds, certain agreements must be evidenced by a writing signed by
the party to be charged to be enforceable.
2. The UCC requires that a contract for the sale of goods at a price of $500 or more be
evidenced by a signed writing.
3. The UCC requires only a signed writing indicating that a contract has been made and
specifying the quantity.
4. The signature requirement is liberally construed; it need not be handwritten; it can be
printed or typed.
5. Under the UCC, any mark made with the intent to authenticate the writing is a signature,
including a party’s initials or letterhead.
6. A note in a memo line of a check may satisfy the Statute of Frauds if it evidences the
contract.
7. Signed includes using any symbol executed or adopted with present intention to adopt or
accept a writing.
8. A contract which meets the requirements of the Statue of Frauds in only enforceable to
the quantity of goods shown in the writing.

Merchants
1. A merchant is one who regularly deals in goods of the kind sold or who otherwise by his
occupation holds himself out as having knowledge or skill peculiar to the goods involved.
2. In contracts between merchants, if one party, within a reasonable time after an oral
agreement is made, sends to the other party a written confirmation of the agreement that
is sufficient under the Statute of Frauds to bind the sender, it will also bind the recipient
if: (1) he has reason to know of the confirmation’s contents and (2) he does not object to
it in writing within 10 days of receipt.
3. The statute of frauds can be satisfied in a contract between merchants if the party seeking
enforcement of the contract has sent the other party a confirmation of the contract that
would itself satisfy the statute of frauds against the enforcing party.
Part Performance
1. Part performance is sufficient to take a sale of goods contract out of the Statute of Frauds
when: (1) the goods have been specially manufactured or (2) the goods have been either
paid for or accepted.
2. If a sales contract is only partially paid for or accepted, the contract is only enforceable to
the extent of the partial payment or acceptance.
3. A contract that does not satisfy the statute of frauds is nonetheless enforceable as to
“goods for which payment has been made and accepted or which have been received and
accepted.”

Substantial Performance
1. In contracts not involving the sale of goods, the condition of complete performance may
be excused if the party has rendered substantial performance.
2. The rules for determining whether performance is substantial are the same as those for
determining whether a breach is minor or material.
3. If the breach is minor, performance is substantial; if the breach is material, performance
is not substantial.
4. To determine whether a breach is material, the court looks at: the amount of benefit
received, the adequacy of damages, extent of performance, hardship to the breaching
party, and whether the breach was negligent or willful.
5. A reasonable delay in performance is usually considered a minor breach unless the nature
of the contract is such as to make performance on the exact day of vital importance or the
contract, by its terms, provides that time is of the essence.
6. If time is of the essence, any delay will be a material breach.
7. To determine whether time is of the essence, the trier of fact looks at the instrument itself
as well as all of the surrounding circumstances.

Divisible Contracts
1. If a contract is divisible, a party who has performed one or more parts is entitled to
collect the contract price for those parts even if it breaches the other parts.
2. It is not a condition precedent to the other party’s liability that the whole contract be
performed.
3. However, the nonbreaching party has a cause of action for each of the unperformed units
and may withhold counter-performance for those units.
4. For a contract to be divisible, (i) the performance of each party must bbe divided into two
or more parts under the contract, (ii) the number of parts due from each party must be the
same, and (iii) the performance of each part by one party is agreed on as the equivalent of
the corresponding part from the other party.
5. Divisibility questions generally turn on fairness.

Defenses to Formation
 1. Duress – A contract can be voided based on duress when a party’s assent to a contract is
induced by an improper threat by the other party that leaves the victim no reasonable
alternative.
a. Economic Duress – Withholding something someone wants or needs will
constitute economic duress if: (1) the party threatens to commit a wrongful act
that would seriously threaten the other contracting party’s property or finances;
and (2) there are no adequate means available to prevent the threatened loss.

Damages (Generally)
1. Contract damages must be foreseeable to recover.
2. Damages are foreseeable if a reasonable person in the position of the breaching party
would have known at the time the contract was made that the damages were likely to
occur as a result of breach.

Expectation Damages
1. Expectation damages are intended to put the injured party in the same position as if the
contract had been performed.
2. Often, where the cost to restore is many times greater than the difference in value of the
property in its unrestored condition, damages are measured by the difference in value.
3. In a case of willful breach, where only the completion of the contract will enable the
nonbreaching party to use the land for its intended purposes, the cost of completion may
be considered the appropriate damage award.

Consequential Damages
1. Consequential damages consist of losses beyond those covered by the standard measure
that a reasonable person would have foreseen would occur as a result of the breach.
2. The availability of consequential damages turns on the breaching party’s awareness of the
other party’s circumstances.
a. The damages must be foreseeable.
3. To recover, damages must be certain and not speculative; i.e., they must be ascertainable
with reasonable certainty.
4. Traditionally, courts would not allow recovery of lost profits from a business not yet
started; they were considered too speculative.
5. The modern trend, however, is to allow recovery if there is sufficient evidence to
determine profits with reasonable certainty.

Reduction of Damages and Mitigation

1. Contract damage awards must take into account costs avoided because of the breach.
2. A nonbreaching party cannot recover avoidable damages.
3. A nonbreaching party must refrain from piling up losses after the breach.
4. The nonbreaching party should make reasonable efforts to cut down the losses after
breach, and if he does not, he will not be permitted to recover those damages that might
have been avoided.
Restitution
1. If the plaintiff is the party who breached the contract, it may still recover in quasi-
contract the value of the services performed minus any damages incurred as a result of
the breach.

Property
Conveyances
1. At common law, a conveyance to two or more persons at the same time, by the same
instrument, of the same interests, giving them identical rights to possession of the
property (the “four unities”) created a joint tenancy.
2. Joint tenants have a right of survivorship; i.e., when one joint tenant dies, the property is
freed from her concurrent interest, so that the survivor’s retain an undivided right in the
property no longer subject to the deceased co-tenant’s interest.
3. Under modern law, joint tenancies are disfavored.
4. Under modern law, a conveyance to two or more persons presumptively creates a tenancy
in common, which has no right of survivorship, rather than a joint tenancy.
a. A joint tenancy results only when an intention to create a survivorship is clearly
expressed.
5. An inter vivos conveyance by one joint tenant of her entire undivided interest destroys
the joint tenancy, so that the transferee takes the interest as a tenant in common and not as
a joint tenant
6. A conveyance of a lesser interest (e.g., a mortgage) may not effect a severance.
7. In most states, a severance results when one joint tenant executes a valid contract to
convey her interest to another, even though no actual transfer of title has yet been made.

Present Estates & Future Interests

1. A fee simple subject to a condition subsequent is created when the grantor retains the
power to terminate the estate of the grantee upon the happening of a specified event.
a. Upon the happening of the stated event, the estate of the grantee continues until
the grantor exercises his power of termination (right of entry) by bringing suit or
making re-entry.
b. The grantor must expressly reserve the right of re-entry; this retained interest does
not automatically arise.
c. The following words create a condition subsequent: “upon condition that,”
“provide that,” “but if,” and “if it happens that.”
2. A fee simple determinable is an estate that automatically terminates on the happening of a
stated event and goes back (reverts) to the grantor.
a. Create by durational, adverbial language such as: “for so long as,” “while,”
“during,” or “until.”
b. The grantee takes the land subject to the termination of the estate by the
happening of the event.
3. The general policy of courts is to avoid forfeiture of estates.
 4. When the terms of a conveyance are ambiguous, there is a presumption in favor of the fee
simple subject to condition subsequent because forfeiture is not automatic.
5. Future interests can pass at death by will or inheritance unless an interest’s taking is
subject to an express or implied contingency of survival.
6. Unless the language or circumstances establish that the transferor had a different
intention, the ambiguity is resolved by construing the word “surviving” as referring to the
distribution date.

Deeds
1. To be valid, a deed must (i) be in writing, (ii) sufficiently describe the land, (iii) identify
the grantor and grantee, (iv) evidence an intention to convey the land, and (v) be signed
by the grantor.
2. The parties may be identified by name or by describing them in some other way. (e.g., “to
my eldest daughter” “to the trustee of my irrevocable trust”)
a. If the deed is delivered with the identity of the grantee left blank, some courts
presume that the person taking delivery has authority to fill in the name of the
grantee, and if he does so, the deed is valid.

Adverse Possession
1. To establish title by adverse possession, the possession must be (i) actual and exclusive,
(ii) open and notorious, (iii) adverse (hostile/under claim of right), and (iv) continuous
throughout the statutory period.
2. Exclusive possession generally means not sharing possession with the true owner or
general public.
a. Friends and family do not constitute the general public.
3. Possession is open and notorious when it is such as the usual owner would make of the
land and is sufficient to put the true owner on notice of the fact of possession.
4. Possession is hostile when it is without the owner’s consent; it does not matter whether
the possessor believes he is on his own land or knows he is trespassing on someone else’s
land.
a. In most states, payment of property taxes is not required to establish title by
adverse possession, but is good evidence of a claim of right.
b. Any time someone enters possession with an invalid deed, the possession is
hostile because they are claiming rights superior to those of the true owner.
5. Continuous possession is possession that the average owner would make of the property
under the circumstances.
6. The statutory period is the limitations period for an ejectment action.

Title
1. Under a notice statute, a subsequent bona fide purchaser (“BFP”) prevails over a prior
grantee even without recording.
2. A BFP is a purchaser who takes for valuable consideration and without notice of a prior
claim at the time of the conveyance.
 3. There are three types of notice.
a. Actual notice is what the purchaser actually knows.
b. Record notice is notice that the law imputes to the purchaser if a prior deed was
properly recorded in the grantee’s chain of title.
c. Inquiry notice is notice of what the purchaser would have discovered by inquiring
into the property.
4. Recording acts do NOT protect a subsequent purchaser against interests that arise by
operation of law (e.g., implied easements, title by adverse possession), because there is
not instrument to record in order to perfect such interests.
a. Subsequent purchasers take subject to those interests.
5. The contract to convey is enforceable in equity, and hence is treated as an effective
transfer of an equitable interest.
a. If the seller dies before the title is transferred, the purchaser is entitled to a deed
from the seller’s estate and becomes a tenant in common with the original joint
tenant.
6. A bona fide purchaser is a person who gives valuable consideration and has no actual,
record, or inquiry notice of the prior instrument.
7. Under the doctrine of equitable conversion, once a contract is signed and each party is
entitled to specific performance, equity regards the purchaser as the owner of the real
property and the seller’s right to the proceeds of sale as personal property.
a. The bare legal title that remains in the seller is considered to be held in trust for
the purchaser as security for the debt owed the seller.
b. If seller dies, the bare legal title passes to the takers of her real property, but they
must give up the title to the purchaser when the contract closes.
c. When the purchaser is paid, the money passes to those who take the seller’s
personal property.
8. Under a notice statute, a subsequent bona fide purchaser takes the property free of prior
interests.
a. The subsequent purchaser must pay valuable consideration and show that he did
not actually know of any prior conveyances (actual notice), did not have notice
from a properly recorded deed (record notice), and did not have notice of
whatever a reasonable inquiry – such as an inspection of the premises – would
have revealed (inquiry notice).
9. Under the “shelter rule,” a person who takes from a bona fide purchaser will prevail
against any interest that the transferor-bona fide purchaser would have prevailed against.
a. This is true even where the transferee has actual knowledge of the prior
unrecorded interest.

Encumbrances
1. The covenant against encumbrances assures that there are neither visible encumbrances
(easements, servitudes, etc.) nor invisible encumbrances (mortgages, etc.) against the title
or interest conveyed.
a. This is a present covenant and is breached, if at all, at the time of conveyance.
 2. If the covenant of title can be enforced against the covenantor by a transferee of the
covenantee, it is said to “run with the land.”
3. The majority rule is that the present covenants do not run with the land and cannot be
enforced by remote grantees.
Mortgages
1. In states that follow the “lien theory,” a mortgage is regarded as a lien on title, and one
joint tenant’s execution of a mortgage on her interest does not by itself cause a severance.
a. A severance occurs only if the mortgage is foreclosed and the property is sold.
b. The mortgagee risks losing its interest if the mortgagor dies prior to foreclosure.
2. In states that follow the “title theory,” a mortgage is regarded as a transfer of title, which
destroys the unity of title and severs the joint tenancy.

Criminal Law & Procedure

Fourth Amendment
1. The Fourth Amendment to the United States Constitution provides that people are to be
free from unreasonable searches and seizures.
2. The Fourth Amendment, which is applicable to the states through the Due Process Clause
of the Fourteenth Amendment, broadly prohibits unreasonable searches and seizures.
3. Generally, to be reasonable, a search or seizure must be pursuant to a warrant, although
there are a number of exceptions to this general rule.
4. Before a person may claim that evidence was seized in an unconstitutional manner, he
must show that he has standing – i.e., that his own constitutional rights were violated.
5. To have standing, a person must show that they had a reasonable expectation of privacy
that was violated.
a. Such an expectation arises when the place searched is a person’s home, or even if
the person was an overnight guest in the home searched.
6. Sometimes reasonableness requires a warrant based on probable cause (e.g., reasonably
trustworthy facts that would lead a prudent person to believe that a crime was
committed).
7. Sometimes reasonableness is sufficient if an officer has reasonable suspicion (e.g., reason
to believe that criminal activity is afoot on something less than probable cause but based
on articulable facts).
8. Supreme Court cases make it clear that a police officer may stop a car if the officer has
probable cause to believe that the driver has committed a traffic violation.
9. A police officer may constitutionally arrest a person for a traffic violation if state law
provides for arrest for the violation.
10. It does not matter that a police officer’s motive for the stop was to investigate something
other than the traffic violation (i.e., that the traffic violation was a mere pretext for the
stop).
11. To be reasonable, searches often must be pursuant to a warrant based on probable cause
that evidence will be found in the place searched.

Exclusionary Rule
 1. Under the Supreme Court’s exclusionary rule, evidence obtained in violation of Fourth
Amendment (and Due Process Clause of Fourteenth Amendment), usually may not be
used in evidence against a person whose rights were violated.

Fruit of the Poisonous Tree Doctrine

1. Under the fruit of the poisonous tree doctrine, the exclusionary effect of the exclusionary
rule is applied not only to the unconstitutionally obtained evidence, but also to evidence
derived from the unconstitutionally obtained evidence.

Attenuation Clause
1. If the connection between unconstitutional police conduct and the evidence is remote or
has been interrupted by some intervening circumstance, so that the casual link between
the police misconduct and the evidence is broken, the evidence will not be suppressed.
a. In such a case, suppression would not serve the purpose of deterring future
misconduct and so the evidence is admissible under the attenuation exception to
the exclusionary rule.
2. The court will consider: (i) the temporal proximity between the unconstitutional conduct
and the discovery or the evidence (the closer the temporal proximity, the less likely the
exception applies); (ii) the presence of intervening circumstances; and (iii) most
importantly, the purpose and flagrancy of the official misconduct.

Warrant Requirement Exceptions

1. There are a number of exceptions to the warrant requirement.
2. Under the plain view exception, a police officer may make a warrantless seizure of
evidence if the officer is in a place he lawfully is allowed to be and sees in plain view
items that he has immediate probable cause to believe are contraband or evidence,
instrumentalities, or fruits of a crime.
3. Supreme Court cases make it clear that if a police officer has probable cause to believe
that an automobile contains seizable items, the officer may search the automobile without
a warrant under the automobile exception to the warrant requirement.

Fifth Amendment (Miranda)

1. The Supreme Court has held that in order to protect the Fifth Amendment privilege
against self-incrimination, which also is applicable to the states through the Due Process
Clause of the Fourteenth Amendment, a person in police custody must be given certain
warnings (the Miranda warnings) before a police officer may conduct a custodial
interrogation.
2. Any statement, question, or conduct by the police designed to elicit an incriminating
response will be considered an interrogation.
3. A person will be considered in custody if his freedom of action is limited in a significant
way.
 4. The Supreme Court has indicated if the police obtain an unwarned confession from a
suspect, warn the suspect, and then requestion the suspect in a question first, warn later
scheme to get around the Miranda requirements, confessions obtained during both
interrogations should be suppressed. But if the unwarned questioning and the warned
questioning do not appear to be part of such a scheme, incriminating statements obtained
during the warned questioning session need not be suppressed.
5. Under Miranda, if a suspect clearly and unambiguously requests counsel, all questioning
must stop until the suspect meets with an attorney.
a. However, this rule applies only if the request is clear and unambiguous.
b. The police have no duty to seek a clarification of an ambiguous request.

Inchoate Offenses
1. To establish that a person committed an attempt of a (crime), the prosecution must
establish, beyond a reasonable doubt, that the defendant had the specific intent to commit
that (crime) and took some step toward completing the (crime).
2. Most courts use some sort of “substantial step” test similar to the MPC in determining
whether the defendant took a sufficient step toward completing the crime; i.e., the
defendant must have taken some step beyond mere preparation toward completing the
crime.
3. Under a traditional approach, the courts used a proximity test; i.e., the acts committed by
the defendant must come dangerously close to completing the crime.
4. Once a defendant has performed sufficient acts to be criminally liable for an attempt, an
abandonment of the criminal attempt would not be a defense.
5. Some jurisdictions, and the MPC, recognize abandonment as a defense if it is fully
voluntary (and not due to the difficulty in completing the crime or to the increased risk of
being caught) and complete (and not in mere preparation).

Crimes Against Person

1. A person commits involuntary manslaughter when he causes a death by criminal
negligence.
2. A person has a mens rea of criminal negligence when he fails to be aware of a substantial
and unjustifiable risk, and this failure constitutes a substantial deviation from the standard
of care that a reasonable person would have exercised in the same situation.
a. Alternately, some states use a recklessness standard for involuntary manslaughter
and require that the person consciously disregard a substantial and unjustifiable
risk.
3. A defendant must be both the cause-in-fact and the proximate cause of the death.
4. A defendant’s conduct is the cause-in-fact of the death if the death would not have
occurred “but for” the defendant’s conduct.
5. A defendant is the proximate cause of a death if the death was the natural and probable
consequence of his conduct, even if he did not anticipate the precise manner in which it
would occur.
 6. An intervening act can shield the defendant from liability if the act is mere coincidence or
is outside the foreseeable sphere of risk created by the defendant’s act.
7. There are two types of involuntary manslaughter: criminal negligence manslaughter and
unlawful act manslaughter.
a. A person commits criminal negligence manslaughter when he causes a death by
criminal negligence.
b. Criminal negligence requires a greater deviation from the reasonable person
standard than is required for civil liability; the defendant’s behavior must be a
substantial deviation from the standard of care that a reasonably person would
have exercised in the same situation.
c. Some states use a recklessness standard for involuntary manslaughter and require
that the defendant had a subjective awareness of the risk of death.
8. Involuntary manslaughter by unlawful act is death caused by the defendant’s commission
of an unlawful act.

Parties to a Crime
1. An accomplice is a person who (i) with the intent to assist the principal and the intent that
the principal commit the crime (ii) actually aids, counsels, or encourages the principal
before or during the commission of the crime.
2. When the substantive offense has recklessness or negligence as its mens rea, most
jurisdictions hold that the intent element is satisfied if the accomplice (i) intended to
facilitate the commission of the crime, and (ii) acted with recklessness or negligence.

Defenses
1. Under the affirmative defense of duress (necessity), a person is not guilty of an offense,
other than intentional homicide, if he performs an otherwise criminal act under the threat
of imminent infliction of death or great bodily harm, provided that he reasonably believes
death or great bodily harm will be inflicted upon himself if he does not perform such
conduct.

Civil Procedure

Subject-Matter Jurisdiction
1. There are two main types of subject matter jurisdiction: (1) federal question jurisdiction
and (2) diversity of citizenship jurisdiction.
2. Diversity of citizenship jurisdiction requires an amount in controversy of more than
$75,000, as determined by the plaintiff’s good faith allegation in the complaint, and
complete diversity of citizenship, meaning that no plaintiff may share state citizenship
with any defendant.
 3. A corporation is a citizen of every state in which it is incorporated and the one state in
which it has its principal place of business, which the Supreme Court has held to be the
place from which the corporation’s high level officers direct and control the corporation’s
activities.
4. For diversity purposes, an individual is a citizen of the state in which she is domiciled,
and the party’s domicile may be changed by being physically present in the state coupled
with the intent to remain there permanently or for an indefinite period.

Personal Jurisdiction
1. In order to exercise personal jurisdiction over a defendant, the exercise must first be
authorized by state statute, and second, the exercise of personal jurisdiction must be
constitutional (minimum contacts test).
2. A federal court must analyze any personal jurisdiction issue as if it were a state court in
the jurisdiction.
3. If the cause of action arises from or relates to the defendant’s contact with the forum,
specific jurisdiction – that is, jurisdiction over the defendant for the instant cause of
action only – is possible.
4. If the cause of action does not arise from or relate to the defendant’s contacts with the
forum, there must be general jurisdiction – that is, personal jurisdiction over the
defendant for all causes of action.
5. In order to be subject to general personal jurisdiction in a forum state, the defendant must
be “at home” in the forum state.
6. To be “at home” in a state, an individual defendant must be domiciled in the state.
7. For a corporation, the United States Supreme Court has stated that the paradigms for
being “at home” are the states of incorporation and the state where the corporation has its
principal place of business.

Service of Process
1. Although service of process by e-mail is not specifically an authorized method of service,
Federal Rule 4 permits the court to authorize methods of service in appropriate cases.
2. Service on a foreign corporation may be made: (1) in accordance with international
treaty; if there is no treaty, service on a corporation may be made: (2) in accordance with
the foreign country’s laws, (3) as the foreign authority directs in response to a letter
request for guidance; (4) by having the clerk mail process to the defendant, with a signed
receipt requested; or, most importantly, (5) by any other means not prohibited by
international agreement as the court may order.
3. The method of service ordered by the court must be reasonably calculated to provide the
defendant with notice of the action. (required by the federal rules and the Constitution)

Summary Judgment
1. In deciding whether to grant a motion for summary judgment, the court must determine
whether a genuine dispute of material fact exists.
 2. A summary judgment must be granted if, from the pleadings, affidavits, and discovery
materials, it appears that there is no genuine dispute of material fact and the moving party
is entitled to judgment as a matter of law.
3. If the moving party submits and affidavit or other evidence in support of the motion for
summary judgment, the nonmoving party must counter that affidavit with his own
evidence from affidavit’s, discovery, etc., on the matter.

Discovery
1. Generally, discovery may be had of any matter not privileged that is relevant to the claim
or defense of any party, including the identity of persons having knowledge of relevant
facts.
2. Costs of discovery and needs of the case will be considered when considering a motion to
compel discovery.
3. Work product of lawyers and others prepared in anticipation of litigation is discoverable
only on a showing of substantial need and to avoid undue hardship in obtaining the
material from other sources.
4. A motion to compel discovery of some files (such as personnel record) may contain
irrelevant information in addition to relevant information; court will likely make an in
camera inspection of the file and redact out any information that is irrelevant to the
current litigation.

Claim Preclusion
1. For claim preclusion to apply, there must have been a valid, final judgment on the merits,
both parties must be the same (or be in privity with a party in the prior suit), and the new
action must involve the same cause of action, meaning that all claims must arise out of
the same transaction or occurrence.

Issue Preclusion
1. For issue preclusion to apply, the issues in both actions must be the same, there must have
been a final judgment as to that issue, the party against whom collateral estoppel is
asserted must have had a fair opportunity to be heard on the matter, and the posture of the
case must be such that it would not be unfair or inequitable to apply collateral estoppel.

Torts

Torts Against Person

1. The prima facie case for battery consists of: (i) an act by the defendant that brings about
harmful or offensive contact to the plaintiff’s person; (ii) intent on the part of the
defendant to bring about such harmful or offensive contact and (iii) causation.
2. Intent for battery may be either specific (i.e., the defendant’s purpose in acting is to bring
about the consequences of his conduct) or general (i.e., the defendant knows with
substantial certainty that the consequences will result).
Negligence
1. The prima facie case for negligence requires the plaintiff to show: (i) a duty on the part of
the defendant to conform to a specific standard of conduct for the protections of the
plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant;
(iii) that the breach was the actual and proximate cause of the plaintiff’s injury; and (iv)
damage to the plaintiff’s person or property.
2. Whenever a person engages in an activity, he is under a legal duty to act as a reasonably
prudent person engaged in the same or similar activity.
3. If a defendant’s conduct creates an unreasonable risk of injury to persons in the position
of the plaintiff, the general duty of care extends form the defendant to the plaintiff.
4. An owner of property has the duty to exercise reasonable care with respect to the
activities on the land to avoid unreasonable risk of harm to others outside the property.
a. To be owed a duty, those outside the property must be within the foreseeable
“zone of danger” from the defendant’s activity.
5. Evidence of custom, usage, or industry standards, while relevant, is not dispositive on the
question of whether certain conduct constitutes negligence.
6. The jury needs to determine whether there was a breach of a duty of care.
7. Proximate cause is present when the harmful result that occurred was within the range of
foreseeable consequences that could result from the negligent act.
8. A tortfeasor takes his victim as he finds her; i.e., the fact that the extent or severity of
harm was not foreseeable does not relieve the defendant of liability.
9. In an action for negligence, the plaintiff must prove that: (i) the defendant owed the
plaintiff a duty of care, (ii) the defendant breached that duty, (iii) the breach was the
actual and proximate cause of plaintiff’s injury, and (iv) the plaintiff suffered damages.
10. A person has a duty to exercise reasonable care in any activity in which she engaged,
which means that her conduct should conform to that of a reasonably prudent person
engaged in a like activity.
11. Children have a duty of care to act as a reasonably prudent person of like age,
intelligence, and experience.
12. A statute providing for criminal penalties may establish a specific duty that will replace
the more general duty of care in negligence cases.
a. The statute will apply if (i) it was designed to prevent the type of harm suffered
by the plaintiff, and (ii) the plaintiff is within the protected class.
13. In most jurisdictions, an unexcused violation of a statutory standard of care is negligence
per se, which means that it establishes the first two prima facie elements of negligence
(duty and breach of duty).
14. In indirect cause cases, where an intervening force combines with the defendant’s
conduct to cause the plaintiff’s injury, proximate cause exists only if the defendant’s
negligence caused a foreseeable harm or caused a foreseeable reaction from an
intervening force.
15. Intervening events that produce a harm outside of the scope of what one would normally
anticipate from the defendant’s negligence are generally deemed unforeseeable and
superseding.
 16. A superseding event will break the chain of causation and relieve the defendant of
liability.
17. The prima facie case for negligence requires the plaintiff to show: (1) duty on the part of
the defendant to conform to a specific standard of conduct for the protection of the
plaintiff against an unreasonable risk of injury; (2) breach of that duty by the defendant;
(3) that the breach was the actual and proximate cause of the plaintiff’s injury; and (4)
damage to the plaintiff’s person or property.
18. As a general rule, no duty is imposed on a person to come to the aid of another absent a
special relationship between the parties.
a. If a person gratuitously comes to the aid of the other, the actor must exercise due
care in providing the assistance, and must not leave the person in a worse position
than he found her.
19. Generally, there is no duty to prevent a third person from injuring another.
a. Such a duty will be imposed when the defendant had a special relationship with
the third person that gave the defendant the actual ability and authority to act, and
the defendant knew or should have known that the third person was likely to
injure the other person.
20. The well-settled rule is that a tortfeasor takes its victim as it finds her.
21. Under the “eggshell-skull plaintiff” rule, the fact that the extent or severity of the
plaintiff’s harm was not foreseeable does not relieve the defendant of liability.
a. If the defendant’s negligence causes an aggravation of the plaintiff’s existing
physical or mental illness, the defendant is liable for the damages caused by the
aggravation.

Comparative Negligence
1. Under modern comparative negligence rules, plaintiff’s negligence would reduce his
recovery from defendant.
2. Under common law a party could not recover if he was found to be negligent in any way.
3. Under the modern comparative negligence approach, fault is apportioned between the
parties.
a. The plaintiff’s percentage share of fault reduces his total damages award by that
percentage.
4. Jurisdiction’s with a partial comparative negligence approach bar recovery for plaintiff’s
who are 50% or more at fault.

Respondeat Superior
1. Under the doctrine of Respondeat superior, an employer is vicariously liable for tortious
acts committed by his employee within the scope of his employment relationship.

Wills (Estates)

Will Execution
 1. For a will to be valid, the testator must meet the formal requirements of due execution
imposed by the statutes of the state.
2. Most states require that the will be signed by the testator and two witnesses, who must
sign in the testator’s presence.
3. The UPC and a majority of states also recognize holographic wills, requiring that all or
most of the will be in the testator’s handwriting and signed by the testator.
4. A valid partial will, or codicil, that refers to an earlier will is said to republish that will.
5. When republication takes place, the republished will is deemed to be executed on the
same day as the codicil.
6. Republication can cure defects that might otherwise affect the validity of bequests made
under a will.
7. A document that is NOT a valid will cannot be republished by codicil.
8. A writing that is not valid as a will but is in existence when a will is executed may be
incorporated by reference into the will if the will manifests an intent to incorporate the
writing and the writing to be incorporated is identified with reasonable certainty.
9. State statutes typically require that the will: (1) be acknowledged by the testator to the
witnesses; (2) signed by the testator in the presence of at least two witnesses; and (3) by
signed by the witnesses below the testator’s signature.
10. A holographic will is an unattested will entirely in the testator’s handwriting.
11. A holographic will is an unwitnessed will in a testator’s handwriting.
12. A will takes effect only upon the death of the testator.
13. Because of the ambulatory nature of a will, it operates upon circumstances and properties
as they exist at the time of the testator’s death (“a will speaks at the time of death”).
14. At common law, a will could not be probated if one of the two necessary witnesses was a
beneficiary. (this is no longer the rule)
15. Most states have “purging statutes” that eliminate a witness beneficiary’s interest rather
than render the will invalid.
16. UPC and some states have repealed their “interested witness” statutes and the fact that a
witness is also a beneficiary has no effect on the will whatsoever.

Will Validity
1. A will (or gift in a will) is invalid if it is obtained through the exercise of undue influence.
2. To establish undue influence, the contestants, who have the burden of proof, must
establish that: (1) influence was exerted on the testator, (2) the effect of the influence was
to overpower the mind and free will of the testator, and (3) the product of the influence
was a will that would not have been executed but for the influence.
3. A presumption of undue influence arises when: (1) a confidential relationship existed
between the testator and the beneficiary who was alleged to have exercised undue
influence, (2) the beneficiary participated in procuring or drafting the will, and (3) the
provisions of the will appear to be unnatural and favor the person who allegedly
exercised undue influence.
a. Once these elements appear, the burden shifts to the proponent of the will to prove
that it was not induced by her undue influence.
 4. A will is void if its execution is procured by undue influence.
5. Undue influence may be established by circumstantial evidence.
6. If only a part of the will was procured by undue influence, only that part is void, and the
remainder of the will is given effect.
7. If a decedent’s will is denied probate (e.g., due to successful will contest), his entire
estate passes by intestacy.
8. At common law, and in some states, if a testator’s residuary estate (i.e., the portion of the
estate that has not otherwise been particularly devised or bequeathed) is bequeathed to
two or more beneficiaries and one of the beneficiaries’ shares lapses (i.e., fails), that share
does not pass to the remaining beneficiaries, but instead “falls out of the will” and passes
by intestacy.
a. Most states have replaced this rule by statute, under which the lapsed share passes
to the other residuary beneficiaries in proportion to their interests in the residue.
9. Under the UPC, a contract to make a gift by will can be established only by: (1)
provisions in the will stating the material provisions of the contract; (2) an express
reference in a will to the contract and extrinsic evidence proving the terms of the
contract; or (3) a writing signed by the decedent evidencing the contract.

Testamentary Intent
1. For a will to be valid, the testator must intend that the particular instrument operate as his
will.
2. The use of language such as “this is my last will” raises a presumption of testamentary
intent, but the presumption is rebuttable.
3. Extrinsic evidence is admissible to show testamentary intent and, presumably, lack of
testamentary intent.
Codicil
1. A codicil is a later testamentary instrument that amends, alters, or modifies a previously
executed will.
2. A will is treated as having been executed (republished) on the date of the last validly
executed codicil.
3. To be republished, the will must have been validly executed.

Incorporation by Reference
1. In most states, a document that is not present when a will is executed may be
incorporated into the will by reference so that it is considered part of the will.
2. To incorporate a document by reference: (i) the document must be in existence at the time
the will was executed, (ii) the language of the will must sufficiently describe the writing
to permit its identification, and (iii) the will must manifest an intention to incorporate the
document.
3. This is a common law doctrine, under which a testator may direct the distribution of his
probate assets in accordance with the terms of another instrument that exists when the
testator’s will was executed and which is specifically referred to in the will.
 4. In most states, a document that is not present when the will is executed may be
incorporated into the will by reference and considered part of the will if: it was in
existence at the time the will was executed, the will sufficiently describes the document,
and the will manifests an intent to incorporate the document.
5. Many states and the UPC do not require the document to be in existence if the disposition
is of personal property, the writing is signed by the testator, and the items and devisees
are described with reasonable certainty.
6. In most jurisdictions, a writing that exists at the time a will is executed may be
incorporated by reference into the will.
a. The will must describe the writing with sufficient particularity that it can be
identified, but the writing need not be witnessed or executed with testamentary
formalities.
7. Some states recognize the right of a testator to dispose of tangible personal property by a
signed memorandum, whether prepared before or after the execution of the will, even
though it is not executed with the formalities required of wills.

Revocation
1. A will may be effectively revoked by operation of law, by a subsequently written
instrument, or by physical act.
2. To revoke a will by written instrument, there must be a present intent to revoke and the
instrument must be executed with the same formalities as are required for the execution
of a will.
3. In states that recognize holographic wills, a valid holographic will or codicil may revoke
a typewritten, attested will.
4. Generally, acts sufficient to revoke a will are, burning, tearing, obliterating, or cancelling
a material portion of the will.
a. Under common law, the act must be shown to have had an actual effect on the will
or its language.
5. Under the UPC, words of cancellation must be on the will itself but need not touch any of
the words of the will.
Non-Probate Assets
1. Life insurance proceeds are a non-probate asset and pass to the beneficiary outside of the
estate.
2. A life insurance policy is a contract, and the disposition of the proceeds is governed by
the terms of the contract.
3. A will cannot change the beneficiary designation unless the terms of the contract permit
it.
4. If an insured dies while a life insurance policy is in effect, the policy proceeds are
payable to the named beneficiary.
5. Life insurance contracts almost never permit a change of beneficiary by will.

Intestacy (Intestate Succession)

 1. Any portion of the Testator’s estate that is not covered by the will, will pass by the laws
of intestacy.
2. Under intestacy statutes, the portion of the estate not passing to the surviving spouse
passes to the decedent’s children and descendants of deceased children.
3. Parents and collateral kin never inherit if the decedent is survived by children or more
remote descendants.
4. In most states, if a decedent is not survived by a spouse or descendants, her intestate
property passes to her parents and/or siblings (and children of deceased siblings).
5. Most states use a per capita with representation distribution where property is divided at
the first generational level at which there are living takers.
6. A few states adhere to a strict per stirpes method of distribution where the stirpital shares
are always determined at the first generational level (the child level) regardless of
whether there are living takers.
7. The UPC defines taking by representation according to a method under which the
intestate estate is divided at the first generation that includes on or more living members.
8. Some intestacy statutes call for equal division among all of the heirs if they are all of the
same degree of kinship to the decedent.
9. A few states use the pure per stirpes method, under which the intestate estate is first
divided at the generation of the decedent’s siblings even if there are no surviving
members of that generation.
a. It is divided into as many shares as there are living members of that generation
and deceased members who left surviving issue.
10. The statutory method of distribution assets that are not disposed of by will.
11. If there is no surviving spouse, the entire estate passes to the decedent’s children and
descendants of deceased children.
12. In most states, the issue take per capita with representation; i.e., the property is divided
into equal shares at the first generational level at which there are living takers, with the
shares of each deceased person at that level passing to his issue by right of representation.
13. Under the per capita at each generational level scheme, the initial division of shares is
made at the first generational level at which there are living takers, but the shares of
deceased persons at that level are combined and then divided equally among the takers at
the next generational level.
14. Under common law strict per stirpes distribution, one share passes to each child of the
decedent, regardless of whether there are any living takers at that level. If the child is
deceased, that child’s share passes to his descendant’s by representation.

Slayer Statute
1. One who feloniously and intentionally brings about the death of the decedent forfeits any
interest in the decedent’s estate.
2. The property passes as though the killer predeceased the decedent.
3. Slayer statutes apply only when the heir kills the decedent whose estate is at issue.
4. Slayer statutes do not apply to bar someone from taking a share of an estate because they
killed another person – even if that person is the source of the decedent’s property.
 5. Slayer statutes bar from inheriting only a beneficiary who killed the decedent whose
estate is at issue.
6. The UPC bars a legatee or heir from taking a share of the estate when he or she killed the
decedent.
7. No slayer statute bars an heir from inheriting from a decedent’s estate because the heir
killed another person, even if the heir’s victim left property to the decedent that is
included in the decedent’s estate.

Specifically Devised Property (Ademption, Intent Test, UPC)

1. Under the doctrine of ademption, when specifically bequeathed property is not in the
testator’s estate at death, the bequest fails.
2. Most courts apply the identity theory of ademption, which uses an objective test: the
testator’s intent is irrelevant.
a. Under this view, if the testator no longer owns the property, the gift is adeemed.
3. Some courts allow the beneficiary to take substitute property if he can show that the
testator intended the beneficiary to take that property.
4. Under the UPC, a specific devisee has the right to real and tangible personal property that
was acquired by the testator as a replacement for the devised property.
5. Generally, when specifically bequeathed property is not owned by the testator at death,
the bequest is adeemed (it fails).
6. Under the identity theory applied in most states, the ademption doctrine is an objective
test that does not take into account the testator’s probable intent.
a. If the property is not in the estate at the testator’s death, it is adeemed, and the
reason it is not in the estate is immaterial.
7. Under a well-recognized exception to the ademption doctrine, if a guardian or
conservator is appointed for the testator after the will is executed and the bequeathed
property is sold by the guardian, the beneficiary is entitled to the sale proceeds – at least
to the extent they have not been expended for the testator’s care.
8. Under the common law ademption doctrine, if specifically devised property is not in the
testator’s estate when the testator dies, the bequest adeems (fails).
9. Under the ademption doctrine, the testator’s intentions are irrelevant; all that matters is
whether the testator owned the specifically devised asset at his or her death.
10. Some courts have rejected this doctrine in favor of an intent test.
11. Under the intent test, a beneficiary of specifically devised property is entitled to substitute
property that was owned by the testator at his or her death if the beneficiary proves that
the testator intended the beneficiary to take the substitute property.
12. Under the UPC, a specific devisee has the right to any “real property owned by the
testator at death which the testator acquired as a replacement for specifically devised real
property.”
13. If a conservator, acting on behalf of a legally incompetent person, sells an asset that is the
subject matter of a specific bequest in the ward’s will, the sale does not cause an
ademption by extinction of the bequest.
14. If a will beneficiary dies during the testator’s lifetime, the gift to him fails.
 15. All states have some form of anti-lapse statute that saves the gift if the predeceasing
beneficiary was in a certain degree of relationship to the testator and left descendants who
survived the testator.
a. Anti-lapse statutes provide for the descendants to take as substitute takers; the gift
is not saved for the predeceasing beneficiary’s estate.
16. Most anti-lapse statutes require that the predeceasing beneficiary be related to the testator
by blood.
17. Some anti-lapse statutes apply only to a testator’s descendants.
18. Some anti-lapse statutes apply to the descendants of a testator’s parent.
19. Few states have anti-lapse statutes that apply to all predeceasing beneficiaries.
20. UPC anti-lapse statute applies to a predeceasing beneficiary who is the testator’s
stepchild, grandparent, or a descendant of the testator’s grandparent.
21. The majority of anti-lapse statutes do not save a gift to a predeceasing spouse – even if he
left descendants who survive the testator.
22. A specific bequest is a gift of property that is particularly designated and is to be satisfied
only by the receipt of the particular property described.
23. For ademption purposes, a gift of stock is usually considered specific only if it is worded
as “my 100 shares.”
24. Under the doctrine of ademption, when specifically bequeathed property is not in the
testator’s estate at death (e.g., it was destroyed, sold, given away, or lost), the bequest is
adeemed; i.e., it fails.
25. Although most courts decide the ademption issue solely on the basis of an objective test –
whether the specifically bequeathed property is a part of the testator’s estate at death –
and do not consider the testator’s intent, some states have adopted a more lenient intent
test, under which the beneficiary is entitled to substitute property owned by the testator if
the beneficiary can prove that the testator intended the beneficiary to take the substitute
property.
26. Under the UPC, a specific devisee has the right to any real property owned by the testator
at death that was acquired as a replacement for the specifically devised property.

Disclaiming Interest
1. A beneficiary may disclaim any interest that otherwise would pass to her from the
decedent’s estate, with the consequence that the interest passes as though the disclaimant
predeceased the decedent.
2. The gift may be saved in favor of the disclaimer’s surviving descendants if she fails
within the purview of the jurisdiction’s anti-lapse statute; otherwise, the gift fails and
becomes part of the residuary estate.
3. A typical anti-lapse statute provides that the surviving descendant’s take by substitution
only when the predeceasing beneficiary is a descendant of the testator.
4. The UPC and some states extend the application of the anti-lapse statute to any
predeceasing beneficiary who is the testator’s stepchild, grandparent, or descendant of the
testator’s grandparent.
Insufficient Assets (Abatement)
1. When an estate’s assets are not sufficient to pay all claims and satisfy all bequests and
devises, gifts abate.
2. Abatement is the process of reducing gifts.
3. Unless the testator specifies an order of abatement, gifts abate in the following order:
intestate property, the residuary estate, general legacies, and specific devises and
bequests.
4. If a beneficiary does not survive the testator, the bequest lapses and falls into the residue
of the estate.
5. Under a typical anti-lapse statute, if a beneficiary dies before the testator and the
beneficiary was both related by blood to the testator within a certain degree of
relationship and had issue who survived the testator, the bequest to the deceased
beneficiary is saved from lapse and the deceased beneficiary’s issue takes in lieu of the
deceased beneficiary.
6. The typical anti-lapse statute would not save a bequest to a spouse even if the spouse
predeceased the testator leaving issue who survived the testator.
7. When the assets of a testator’s estate are insufficient to pay all of the bequests payable
under the testator’s will, the bequests are reduced, or abated.
8. Under the common law and in most states, unless the testator specifies a different
abatement scheme, testamentary bequests abate in the following order: (1) residuary
bequests, (2) general bequests, and (3) specific bequests.
a. Abatement within each category is pro rata.
9. Generically described gifts are not an ademption issue.

Revocation by Operation of Law

1. If a testator is divorced after making a will, all gifts to the former spouse are revoked, and
the will takes effect as though the former spouse predeceased the testator.
2. In most states, the Testator’s divorce from spouse revokes only gifts to the Spouse, not
gifts to anyone else.
a. Under the Uniform Probate Code, a divorce revokes bequests not only to the
former spouse but also to the relatives of the former spouse.
3. Without a valid revocation, a bequest in a validly executed will remains in full force
regardless of the subsequent relationship of the parties.
4. A divorce automatically revokes provisions of a will in favor of the former spouse,
including all bequests to the former spouse.
5. The will is read as though the legatee/former spouse predeceased the testator.
6. The residuary estate will pass by intestacy.
7. Although divorce revokes provisions in a will in favor of the testator’s former spouse,
ordinarily it does not revoke provisions in favor of relatives of the former spouse.
8. Under the UPC, a divorce revokes a bequest to a relative of the divorced spouse.

Stock Dividends
 1. Under the common law rule, a specific bequest of stock includes any additional shares
produced by a stock split but not those produced by a stock dividend.
2. Under the UPC and the statutes of nearly all states, a specific bequest of stock includes
stock dividends.
3. For purposes of stock splits and dividends, most courts consider all bequests of stock to
be specific bequests.
4. At common law, a specific bequest of stock includes any additional shares produced by a
stock split, but does not include shares produced by a stock dividend.
5. Most states and the UPC, a specific bequest of stock also includes shares of stock
produced by a stock dividend.
6. For ademption purposes, a gift of stock is usually considered specific only if it is worded
as “my 100 shares.”

Cy Pres
1. If the testator had a general charitable intent and it is impossible or impractical to use the
gift for the purpose intended, the doctrine of cy pres allows the court to apply the
property to another purpose as close as possible to the original one, rather than permit the
gift to fail and become a resulting trust.
2. Application of the cy pres doctrine is not limited to charitable trusts; it also applies to
outright bequests to charities where the named charity is no in existence at the tesator’s
death.

Trusts & Future Interests

Creation of Trust
1. To create a valid trust, there must be a settlor who, intending to create a trust for a valid
trust purpose, delivers the trust property to the trustee to hold for the benefit of one or
more beneficiaries.
2. If there are no trust assets when the trust instrument is executed, a trust arises in the
future only if, when the assets come into existence, the settlor manifests anew an
intention to create the trust.
a. This new manifestation is not required if the promise to create a trust is supported
by valid consideration.
3. A trust of personal property is valid if it has a trustee, a beneficiary, and trust property.
4. Under the UTC, a writing is not necessary to create an enforceable inter vivos trust.
5. If a trust that is invalid for lack of assets is later funded, a trust arises at that time if the
settlor re-manifests the intention to create the trust.
6. To create a valid trust, there must be a settlor who, intending to create a trust for a valid
trust purpose, delivers the trust property to the trustee to hold for the benefit of one or
more beneficiaries.
7. Because a trust cannot exist without someone to enforce it, definite beneficiaries are
necessary to the validity of a trust.
8. The beneficiaries need not be identified at the time a trust is created, but they must be
susceptible of identification by the time their interests are to come into enjoyment.
 9. Trust beneficiaries may be a class, provided that the class is sufficiently definite.
a. A settlor can allow the trustee in its discretion to select the members as long as the
class is reasonably definite.
b. If the class is too broad, the trust (or a portion thereof) may be invalid for lack of
definite beneficiaries.
10. When a portion of a trust fails for lack of a beneficiary, a resulting trust in favor of the
settlor or the settlor’s successors in interest is presumed.

Support Trust
1. A support trust is one in which the trustee is required to pay or apply so much of the trust
as is necessary for the support of the beneficiary.
2. The trustee does not have discretion to refuse to pay bills necessary for the beneficiary’s
support.
3. Trusts for support can be divided into two broad categories: a pure support trust and a
discretionary support trust.
4. A pure support trust is a trust under which payments are limited for a beneficiary’s
support.
a. If the beneficiary has a support need, Trustee may pay the beneficiary trust
property (income or principal, depending on the terms of the trust) to the extent of
available funds.
5. A discretionary support trust is a trust under which a trustee has discretion to withhold
payments of trust property from a beneficiary who has a support need.
6. A beneficiary of a support trust has an enforceable legal right to trust property that, under
the terms of the trust, must be distributed I satisfaction of the beneficiary’s support need
when that need arises.
a. The beneficiary has no right to compel payment of trust property as long as
Trustee is not abusing its discretion by withholding payments.

Discretionary Trust
1. In a discretionary trust, the trustee is given discretion whether to apply or withhold
payment of trust property to the beneficiary.
2. This discretion actually limits the rights of the beneficiary to the amounts that the trustee
decides to give her.
3. The beneficiary cannot interfere with the exercise of the trustee’s discretion unless the
trustee abuses her power.
a. What constitutes abuse depends on the extent of discretion conferred on the
trustee.
4. Generally, a court will not interfere unless the trustee has acted in bad faith or
dishonestly.
a. A court is also more likely to interfere if the trust is also a support trust.
5. Discretionary trusts may also be created to provide for more than a beneficiary’s support
needs.
Spendthrift Trust
1. A spendthrift trust is one in which the beneficiary is unable voluntarily or involuntarily to
transfer his interest in the trust.
2. Beneficiary cannot give away his rights to future income or capital.
3. Creditors generally are unable to collect or attach to income or capital from the trust.
a. Exception is made when the settlor is a beneficiary of the trust and attempts to
protect his own retained interests from his creditors by the inclusion of a
spendthrift provision. In that event, the settlor-beneficiary’s creditors can reach
his right to the income as if the spendthrift restriction did not exist.
4. Some jurisdictions follow a theory that a spendthrift trust is indestructible on the theory
that the spendthrift clause evidences that a material purpose of the trust would be
defeated if the trust were terminated.
5. When the settlor of a trust is also a trust beneficiary, his creditors are entitled to the
maximum amount that could be distributed from the trust to the settlor, even when
withdrawals are discretionary or limited by a support standard.

Trustee Duties
1. Trustee has the duty to preserve trust property and make it productive.
2. The trustee’s duty of loyalty extends to all beneficiaries equally.

Pour-Over Gift From Will

1. Under the traditional view, to create a valid pour-over gift from a will to a revocable trust,
the trust must be in existence or must be executed at the time of the will’s execution.
2. Under the prevailing view, a will may devise property to a trustee of a trust established or
to be established during the testator’s lifetime; i.e., the trust may be established after the
will is executed but before the testator’s death.
3. Pour-over gifts are valid even if the trust is unfunded during the testator’s lifetime.
4. Under the Uniform Testamentary Additions to Trust Act and Uniform Probate Code, a
person may bequeath assets to a trust created during the testator’s lifetime, by the testator
or another, so long as the trust is identified in the testator’s will and its terms are
incorporated in a writing executed before or concurrently with the execution of the
testator’s will.
5. Such a bequest is valid even if the trust is unfunded, revocable, and amendable.

Termination of Trust
1. Most jurisdictions permit termination of a trust by its beneficiaries only if all of the
beneficiaries consent and the modification will not interfere with a material purpose of
the trust.
2. Although permitted by the UTC, most states do not permit a guardian to consent to the
termination of a trust on behalf of unborn beneficiaries.
3. The court will not terminate a trust when doing so would interfere with the material
purpose of the trust.
 4. The presence of a spendthrift provision precludes termination of a trust because it shows
the settlor’s purpose and manifests his lack of confidence in the judgment and
management ability of the beneficiary.
a. The only way to terminate would be for the settlor to join in the request for
termination.
5. A court can terminate a trust prior to the time fixed in the instrument if the trust purposes
are accomplished early or the trust purposes become illegal or impossible to carry out.
6. While a court generally cannot, under the doctrine of changed circumstances, change the
beneficial rights of the beneficiaries, a court may strain to find an implied power of
invasion of the corpus in the trust instrument, particularly if it can find that support of the
income beneficiary was the primary purpose of the trust.
7. Merger of title results in termination of a trust when the sole trustee is also the sole
beneficiary.
8. A trust may be revoked with the unanimous agreement of the grantor and all of the trust’s
beneficiaries.
a. if there are unborn or incompetent beneficiaries, the trust cannot be revoked since
their consent to revoke cannot be obtained. (Some jurisdictions may permit a
guardian ad litem to appear and consent on their behalf.)
b. if the grantor is dead, court approval can substitute for the testator’s consent.
9. For the court to approve a revocation of a trust, the court must find that all material
purposes of the trust have been performed.

Rights of Creditors
1. Except as otherwise provided by statute or as validly restricted by the terms of the trust
instrument (e.g., a spendthrift provision), the interest of an insolvent trust beneficiary can
generally be reached in appropriate proceedings to satisfy the claims of his creditors.
2. The creditor reaches only the interest of the beneficiary and not the trust property itself.

Charitable Purpose
1. The cy pres doctrine applies when a specific charitable purpose indicated by the settlor is
no longer possible or practical, and the settlor manifested a general charitable intent.
2. The court can direct that the trust property be applied to another charitable purpose as
close as possible to the original one, rather than permit the trust to fail and become a
resulting trust.

Agency & Partnership

Agency Relationship
1. Generally, an agency relationship is created when one person (the principal) manifests an
intent that another person (the agent) act on his behalf and both parties consent to the
agreement.
2. A principal is contractually bound to the acts of the agent if the agent acted with actual or
apparent authority.
 3. Agency is the fiduciary relationship that arises when one person (a “principal”) manifests
assent to another person (an “agent”) that the agent shall act on the principal’s behalf.
4. When an agent acts without authority, a third party can recover from the agent.

Actual Authority
1. Actual authority is authority that the agent reasonably thinks he possesses based on the
principal’s dealings with him.
2. Actual authority can be express (i.e., contained within the agreement between the parties)
or implied from the actions of the principal.

Apparent Authority
1. Apparent authority arises when the principal “holds out” the agent as having certain
authority, causing third parties to reasonably believe the agent has such authority.
2. An agent has apparent authority to act on behalf of a principal when “a third-party
reasonably believes the actor has authority to act on behalf of the principal and that belief
is traceable to the principal’s manifestations.”
3. Apparent authority can co-exist with actual authority or it can exist in the absence of
actual authority.

Partnership
1. A partnership is formed when two or more people associate to carry on as co-owners a
business for profit.
2. A person who receives a share of the profits from a business is presumed to be a partner.

Agency Relationship (Partnership)

1. An agent of a partnership can bind the partnership to a contract.
2. Each partner in a partnership is an agent of the partnership for the purpose of its business.

Authority (Partnership)
1. A partnership can be bound on a contract entered into by a partner with actual or apparent
authority.
2. Actual authority is authority that a partner reasonably believes he has based on his
communications with the partnership.
3. Actual authority can take the form of express authority or implied authority through
custom, necessity, or prior acquiescence.
4. The act of any partner apparently carrying on in the ordinary course of the partnership
business or business of the kind carried out by the partnership will bind the partnership
unless the partner had no authority to act for the partnership and the third party with
whom the partner dealt knew that the partner lacked authority.
5. Actual authority to enter into transactions regarding matters within the ordinary course of
business requires a majority vote of the partners, and actual authority to enter into matters
outside the ordinary course of business requires unanimous consent of all partners.
 6. A partnership is defined as an association of two or more persons to carry on as co-
owners of a business for profit whether or not the persons intend to form a partnership.
7. Under RUPA, a person who shares profits is presumed to be a partner unless the profits
were received in payment of a debt or of interest or other charge on a loan.
8. Every partner is an agent of the partnership for the purposes of its business.
9. A partner is an agent of the partnership and can bind the partnership to a contract if it is
of the kind of business carried on by the partnership.
10. An act outside the ordinary course of business of a partnership may be undertaken only
with the consent of all of the partners.
11. A partnership will be bound by a partner’s act after dissolution if the act is appropriate for
winding up the partnership business.
12. A partnership will also be bound by a partner’s post-dissolution act (even an act that is
not appropriate for winding up, such as a contract for new business) where the party with
whom the partner dealt did not have notice of the dissolution and the act would have
bound the partnership before dissolution.
13. A partner has apparent authority to carry on in the ordinary course the partnership’s
business unless the other party to the transaction knows that there is no authority.

Personal Liability (Partnership)

1. All partners are jointly and severally liable for all obligations of the partnership, which
means that each partner is personally liable for the entire amount of such obligations.
2. In jurisdictions that follow the Uniform Partnership Act (“UPA”), partners are only
jointly liable for debts of the partnership.
3. When a partner enters a contract he had no authority to enter on behalf of the partnership,
the partnership is not bound by the contract.
4. All partners are jointly and severally liable for all obligation of the partnership.
5. Where one partner pays the whole of a partnership debt, she may require the other partner
to contribute his pro rata share of the payment.
6. In the absence of agreement otherwise, partners share profits equally, and losses are split
in the same ratio as profits.

Dissociation & Dissolution of Partnership

1. Dissociation is a change in the relationship of the partners created by any partner ceasing
to be associated with the carrying on of the business.
2. A partner is dissociated from the partnership upon notice of his express will to withdraw
as a partner.
3. A partnership is dissolved and its business must be wound up when a partner in a
partnership at will notifies the partnership of his intent to withdraw.
a. The partnership business then must be wound up.
4. An at will partnership exists when the partners did not agree that the partnership was to
continue for any specific amount of time.
5. A partnership will be bound by a partner’s act after dissolution if the act is appropriate for
winding up the partnership business.
 Family Law
Common Law Marriage
1. If a marriage is valid when entered it will be recognized in other states.
a. A couple can be considered married in a state that recognizes common law
marriage and other states will uphold that even if they do not recognize common
law marriage.
2. The basic requirements to establish a common law marriage are capacity to enter into a
marriage, an exchange of consent, cohabitation, and a holding out publicly of living
together as spouses.
3. Contracts between unmarried cohabitants will be enforced if sexual relations are not the
only consideration for the contract.
a. In determining whether there was a sufficient holding out, courts look to conduct
such as using a common last name, opening a joint bank account, and telling
others in the community that they consider themselves married.

Child Support Orders (Jurisdiction & Award)

1. Under the Full Faith and Credit for Child Support Orders Act (“FFCCSOA”), full faith
and credit must be given to another court’s child support order if: the court had
jurisdiction over the matter and the parties, and the parties had reasonable notice and an
opportunity to be heard.
2. A state can enforce another state’s child support order under the Uniform Interstate
Family Support Act (“UIFSA”) even if the state does not have personal jurisdiction over
the party of which the enforcement is being sought.
3. Under UIFSA, a court of one state may serve as an initiating tribunal to request the court
of the state that gave the support order, which has continuing and exclusive jurisdiction
over the support order, to enforce or modify the order issued in the state where the
support order was granted.
4. Child support is based on the parents’ capacity to pay, the parents’ income, and the needs
of the children.
5. All states have child support guidelines, as required by federal law.
6. Child support guidelines must consider the income of the noncustodial parent and must
also provide for the child’s health care needs.
7. Deviations from child support guidelines can be made only upon express findings of fact.

Child Custody Orders (Jurisdiction)

1. Under the federal Parental Kidnapping Prevention Act (“PKPA”), a state may not modify
a custody order if one of the parties continues to reside in the issuing state and, under that
state’s law, the court continues to have and does not decline jurisdiction.
2. Under the Supremacy Clause of the United States Constitution, the federal law prevails
over any contrary state law.
3. Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which
has been adopted by nearly every state, the court that made the initial custody
 determination has continuing, exclusive jurisdiction over the matter until that court
determines that: neither the child nor the parents continue to reside in the state, or the
child no longer has a significant connection with the state and substantial evidence
relating to the child’s care, protection, training, and personal relationships is no longer
available in the state.

Child Custody Orders (Enforcement & Modification)

1. Removal of a child from the jurisdiction is a substantial, material change of
circumstances warranting modification of the custody order.
2. The court will follow the best interest of the child standard in fashioning a custody and
visitation schedule.
3. Generally, courts consider: the wishes of the parents; the wishes of the child; the
relationship of the child with each parent; the child’s adjustment to home, school, and
community; and the mental and physical health of the parties involved.
4. A parent should (must) ask for modification of a custody order before taking the child
and moving away.
5. The interstate modification of the child custody decree is governed by the federal
Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction
and Enforcement Act (UCCJEA).
6. Neither the PKPA nor the UCCJEA give the non-issuing state court authority to modify
the issuing state court’s custody decree.
7. The PKPA provides that a state may not modify a custody decree issued by another state
if either the child or any part continues to reside in the issuing state and the issuing state’s
courts do not decline to exercise jurisdiction.
8. Under the Supremacy Clause, the PKPA takes precedence over any conflicting state law.
9. Nearly all states have enacted the UCCJEA, which contains custody-modification
standards virtually identical to those of the PKPA.
10. Under the UCCJEA, a state that properly issued a custody decree retains continuing,
exclusive jurisdiction until all parties and the child have left the state, or until an issuing-
state court has determined that there is no longer any significant connection between the
child and the person remaining in the state and that substantial evidence is no longer
available in that state.
11. Custody modification is based on a substantial change in circumstances.
a. One parent’s relocation that significantly impairs the other parent’s ability to
exercise his or her custodial rights represents a substantial change in
circumstances.
12. Because of the need to protect the best interests of a child, custody orders are subject to
modification throughout the child’s minority, however, because stability and finality are
also important values in child custody litigation, most states permit modification only
when there has been a substantial change in circumstances since the original custody
decree.

Child Support Orders (Enforcement & Modification)

 1. Child support is modifiable based on a substantial change of circumstances.
2. If a custody award is modified, the support obligation should be recalculated to determine
each party’s obligation under the child support guidelines.
3. Child support cannot be modified retroactively.
4. When calculating how much support a parent should pay, the court will look primarily to
the monetary need of the children and the parent’s ability to pay.
5. State guidelines usually dictate a formula based on the number of children, their ages, any
special needs of the children, and the parents’ income.
6. The court may deviate from the guidelines, but must make findings of fact justifying the
deviation.
7. Interstate enforcement and modification of child support is governed by the Uniform
Interstate Family Support Act (UIFSA), which has been adopted by all states.
8. Under UIFSA, a registered child support order issued in another state is “enforceable in
the same manner and is subject to the same procedures as an order issued by a tribunal of
the adopting state.”
9. UIFSA would permit the non-issuing state to enforce a registered support order against a
parent through a “two-state” procedure that avoids the need to obtain personal
jurisdiction over the parent.
10. Under UIFSA, the issuing state has exclusive jurisdiction to modify the child support
order if the child or any party continues to reside in that state and all parties do not
consent to the jurisdiction of another forum.
11. Although federal law forbids retroactive modification of the support order, an issuing
court may modify the order prospectively if it finds a substantial change in
circumstances.
12. In all states, modification of a support order is based on a finding that there has been a
substantial change in circumstances that significantly reduces the child’s need for support
or the obligor’s capacity to pay.
13. There is a strong public policy favoring the establishment and maintenance of legal
support obligations, and even poor obligors whose income falls below a value that the
state deems essential for self-support are typically required to make token child support
payments.

Adoption
1. Generally, a child may not be adopted without consent from both of his biological
parents.
2. Whether consent must be obtained from an unwed father depends on how involved the
father was with the child.
3. Unwed parents have the right to raise their own children.
4. If an unwed father is part of the “family unit” that includes the child, the relationship
between the father and child is protected by due process, provided the unwed father has
demonstrated a full commitment to the responsibilities of parenthood by participating in
the rearing of his child.
 5. The court will consider whether the father shouldered any significant responsibility with
respect to the daily supervision, education, protection, or care of the child.
6. An unwed father who has never attempted to establish a legal or personal relationship
with the child has no rights with respect to an adoption.
7. An involved unwed father has a right to block an adoption unless the unwed father is
found to be an unfit parent.
8. When weighing whether an unmarried father may veto an adoption, the court will
consider not only the factors listed above, but also whether the parents lived with each
other and cared for the child and whether the unwed father admitted paternity or paid
child support.

Divorce (Generally & Jurisdiction)

1. To establish jurisdiction over a divorce action, one of the parties must be a bona fide
resident of the jurisdiction where the action is brought.
2. States may set minimum durational residency requirements, such as 90 days or one year,
before a divorce action can be filed.
3. Most states now offer “no-fault” divorces that provide for the dissolution of a marriage
without regard to marital funds, generally upon a showing that the marriage is
irretrievably broken and that the parties have been living separate and apart for a specific
period of time.
4. The plaintiff’s residence alone may be the basis for a state’s granting a divorce, regardless
of whether there is personal jurisdiction over the defendant.
5. A court that lacks personal jurisdiction over one spouse may grant a divorce, but may not
issue a binding property division or support order.
6. Jurisdiction over both spouses is not necessary to dissolve a marriage.
7. If the plaintiff spouse is a domiciliary of the forum state, courts of that state have
jurisdiction to dissolve the plaintiff’s marriage.
8. In an ex parte divorce, the court’s jurisdiction extends only to the marriage itself.
9. Unless the court has personal jurisdiction over the defendant spouse, it may not issue a
binding order affecting personal rights such as property division.
10. The divorce decree is divisible.
11. A court may order a divorce based on separate and irreconcilable differences even if the
separation was nonconsensual and one spouse believes that reconciliation is possible.
12. A spouse may obtain a divorce without a showing of fault or consent of the other spouse
by showing irreconcilable differences and a minimum period of separation.
13. A no-fault divorce may be granted without any attempt at reconciliation.

Division of Property Upon Divorce

1. In general, all property acquired during the marriage is marital property unless it is
acquired through gift, bequest, devise, or descent.
2. When a gift is given to both parties, courts will look at the donor’s intent to determine
whether he intended both parties to use the gift.
 a. Unless a particular wedding gift is only appropriate for the use of one spouse,
wedding gifts should be classified as marital property.
3. Stock increases during the marriage are considered marital property.
4. Marital property is subject to division at divorce.
5. When making a property distribution, the court does not have to divide stocks equally
between parties.
6. Generally, a court cannot determine out-of-state property rights or rights to support unless
it has jurisdiction over both parties.
7. In an ex parte divorce (i.e., one where only the plaintiff is before the court), the court can
grant the divorce, but cannot award spousal support or divide out-of-state property.
a. There is a limited exception for marital property located within the state.
8. The courts have authority to order an equitable distribution of all martial property, no
matter how title is held.
9. All assets acquired during the marriage are deemed marital property, unless acquired
through gift, bequest, devise, or descent.
10. If property is acquired before the marriage, but paid for after marriage with marital funds,
most courts will apportion the property between separate and marital interests in
proportion to the contribution of separate and marital funds used to pay for the property.
11. A spouse’s income during marriage is marital property.
12. Property which spouses acquire during the marriage is presumed to be marital property.
13. A wedding gift is typically marital property.
14. A court may divide marital property regardless of which spouse holds title.
15. Property acquired during the marriage with employment income is marital property
subject to division.
16. Inherited property and property acquired before marriage are separate property that is
typically not subject to division.
17. If the value of a separate asset is increased through marital funds or significant spousal
labor, it may be apportioned into separate and marital components.
18. Assets acquired before marriage or by inheritance are separate, non-marital, property.
19. The use of marital funds to add value or obtain increased equity in separate property
creates marital property.
20. Property acquired during the marriage with marital funds is marital property.
21. An asset that is initially separate property may be transformed into marital property if
marital funds or significant effort by the owner-spouse during the marriage enhances its
value or build equity.
22. The fact that a separate asset appreciates in value during the marriage does not in itself
transform that asset into marital property.
23. A court must have personal jurisdiction over both parties to distribute assets.
24. A court may not split a couples’ property unless they were married or had a valid
cohabitation agreement.
25. In making an equitable distribution, the court will consider factors such as: earning
capacity of each party, duration of marriage, standard of living during the marriage,
 source of the money used to purchase marital property, each party’s health, custody of
minor child, each party’s contribution to the marriage, etc.

Spousal Support
1. The purpose of spousal support is to ensure an adequate income stream for the spouse
whose economic dependency has resulted, at least in part, from the marital relationship.
2. Some states will consider marital fault when awarding alimony and others will not.
3. When determining what type and how much support to award, the court considers: (1) the
standard of living during the marriage; (2) the duration of the marriage; (3) the age and
physical and emotional conditions of both parties; (4) the financial resources of each
party (including how marital property was apportioned); (5) the contribution of each
party to the marriage (including homemaking, child care, education, and career building
of the other party); (6) the time needed to obtain education or training to enable either
party to find appropriate employment (where applicable); and (7) the ability of the payor
spouse to meet his needs while paying spousal support.
4. Permanent spousal support is awarded to a spouse who has neither the resources nor the
ability to be self-sustaining.
5. When determining a temporary support award, the court will factor in the amount of time
it will take the spouse receiving support to acquire necessary skills to reenter the
workforce.
6. Spousal support is awarded on the basis of a number of factors, including the payor’s
ability to pay, the recipient’s need and ability to be self-supporting, and the marital
standard of living.
7. Rehabilitative alimony is temporary support at a sufficient level and for sufficient time to
enable the other spouse to re-establish their career.
8. In many states spouses are considered to be in need if their income is insufficient to
maintain the marital standard of living.
9. If a spouse is awarded spousal support, most courts would first determine whether the
spouse was awarded sufficient property to generate the income they need.

Corporations
Promoters
1. A promoter is a person who procures commitments for capital and instrumentali es on
behalf of a corpora on that will be formed in the future.
2. As a general rule, promoters are personally liable on all such contracts, and this liability
con nues even a er the corpora on is formed and even if the corpora on also becomes
liable on the contract by adop ng it.
3. There is an excep on to the general rule: A promoter will not be liable on a pre-
incorpora on contract if the agreement between the par es expressly indicates that the
promoter is not to be bound.
a. In such a case, the “contract” is considered to be an o er to the proposed
corpora on.
4. As a general rule, a corpora on is not liable on a contract entered into by a promoter.
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 5. However, the corpora on can become liable if it adopts a promoter’s contract.
6. Adop on can be express (e.g., by resolu on of the board of directors with knowledge of
the material facts) or implied (e.g., by acquiescence or conduct normally cons tu ng
estoppel, such as accep ng the bene ts from the contract if done with knowledge of the
material facts).

Business Judgment Rule

1. The business judgment rule is a presumption that a director’s decision may not be
challenged if the director acted in good faith, with the care that an ordinarily prudent
person would exercise in a like position, and in a manner the director reasonably believed
to be in the best interest of the corporation.
2. While corporate law allows directors to rely on the opinions of experts and corporate
insiders generally, it is not reasonable to do so when the person whose opinion is being
relied on has a personal interest in the transaction.
3. The business judgment rule requires a director to act in the manner the director believes
to be in the best interest of the corporation.
4. Directors owe a duty of loyalty and a duty of care.
5. Directors have a duty to exercise an informed business judgment.
6. Under the Model Business Corporation Act, directors must exercise care in becoming
informed.
7. The exercise of managerial powers by a director is subject to the business judgment rule.
8. The business judgment rule “is a presumption that in making a business decision, the
directors of a corporation acted on an informed basis, in good faith and in the honest
belief that the action taken was in the best interests of the company.”
9. In performing their duty to become informed, directors are generally entitled to rely upon
information, opinions, reports, or statements of corporate officers.
10. Under the Model Business Corporation Act, a director is not protected from liability in
reliance where he or she has knowledge that makes reliance unwarranted.
11. Where a director stands on both sides of a transaction, the business judgment rule does
not apply.
12. A director fulfills his duty as a director using good faith business judgment where the
director is, among other things, not interested in the subject of the transaction.
13. Approval by fully informed disinterested directors permits invocation of the business
judgment rule and limits judicial review to issues of gift or wase, with the burden of
proof upon the party attacking the transaction.
14. Approval by disinterested directors does not trigger the business judgment rule where the
director has not disclosed all material facts about the director’s interest in the transaction.
a. Required disclosures includes, among other things, all facts known by the director
respecting the subject matter of the transaction that an ordinarily prudent person
would reasonably believe to be material to a judgment about whether or not to
proceed with the transaction.

Liability to Corporation
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 1. A transaction cannot be set aside merely because a director had a personal interest in the
transaction if the director disclosed the material facts of the transaction to disinterested
members of the board or shareholders, who approved the transaction, or the transaction
was fair to the corporation.
2. Under the Model Business Corporation At, a director is not liable to a corporation unless
the party asserting liability establishes one of a number of elements, including receipt of
financial benefit by the director to which the director is not entitled, or other actionable
breach of duty by the director to deal fairly with the corporation.
3. Directors who are on both sides of a transaction in question have the burden of
establishing the entire fairness of the transaction.

Exculpatory Provisions
1. A corporation’s articles of incorporation may limit or eliminate directors’ personal
liability for money damages to the shareholders or corporation for actions taken, except
to the extent that the director received a benefit to which he was not entitled, intentionally
inflicted harm on the corporation or its shareholders, approved unlawful distributions, or
intentionally committed a crime.
2. A corporation’s articles of incorporation may include a provision shielding its directors
from liability for money damages for the failure to exercise adequate care in the
performance of their duties as directors.
3. The Model Business Corporation Act permits provisions that protect directors from
liability for breaches of the duty of care, but does not permit provisions that limit or
eliminate the liability “for the amount of a financial benefit received by a director to
which he is not entitled.”
4. Exculpatory provisions do not protect directors from actions undertaken in bad faith or
for a. breach of the duty of loyalty, such as the receipt of an improper personal benefit.

Voting
1. The vote required for approval may be set in the articles of incorporation or the bylaws,
but when the two conflict, the articles of incorporation control.
2. Only shareholders of record on the record date may vote at a shareholders’ meeting.
3. Shareholders do not have to vote in person; they may give another a written and signed
proxy giving the other the right to vote the shares.
4. A shareholder may attend a shareholders’ meeting and vote his shares personally.
5. Only outstanding shares may be voted.
6. Shares that were issued and outstanding, but that have been repurchased (“treasury
shares” in some jurisdictions) are not outstanding.
7. Only shareholders of record on the record date are entitled to vote at an annual
shareholders’ meeting.
8. The record date determines who is entitled to vote at a particular shareholder meeting.
9. A shareholder of record may attend and vote at an annual shareholders’ meeting.
10. Shares that are repurchased by a corporation are not outstanding shares and therefore may
not be voted.
 11. Shares that are reacquired by a corporation are considered authorized but not outsanding.
12. When the articles of incorporation conflict with a corporation’s bylaws regarding how
many shares must vote in favor of a shareholder proposal in order for that proposal to be
approved, the articles of incorporation prevail over the bylaws.

Proxies
1. Proxies generally are revocable unless they say that they are irrevocable and are coupled
with an interest (situations in which the proxy holder essentially pays for the right to be a
proxy, such as where the proxy holder has purchased the underlying shares from the
owner of record).
2. Proxies may be revoked by a subsequent instrument or by the shareholder of record
showing up to vote in person.
3. Generally, a shareholder proxy is revocable.
4. Any action taken inconsistent with a proxy revokes that proxy.
5. Proxies must be revocable unless coupled with an interest.
6. A proxy can be made irrevocable only if the proxy form explicitly so states and the proxy
is “coupled with an interest.”
7. An appointment of a proxy is revocable unless the appointment form or electronic
transmission states that it is irrevocable and the appointment is coupled with an interest.

Secured Transactions
Scope
1. Article 9 of the Uniform Commercial Code governs security interests and provides rules
for their priority.
2. Consumer goods are goods that are used or bought primarily for personal, family, or
household purposes.
3. Generally, goods used in a business are equipment.
4. Under the original use test, a debtor’s original intended use of collateral governs the
collateral’s classification.
5. Goods that are not consumer goods, farm products, or inventory are equipment.
6. Under Article 9, a creditor can gain certain rights to take goods of a debtor upon default
by attaching a security interest to the goods (called collateral).
7. The relevant rules for resolving a priority dispute will be determined b home one
classifies the collateral.
8. To classify the collateral, one must look at the expressed intent at the time of purchase
and the use of the collateral in the hands of the debtor.
9. Debtor’s intended use at the time of the sale should govern the classification of the
collateral.

Attachment
1. Attachment gives the creditor rights against the debtor in collateral.
2. To attach a security interest: (1) either the debtor must authenticate a security agreement
granting the creditor a security interest in collateral that describes the collateral or the
 creditor must take possession or control of the collateral, (2) the creditor must give value,
and (3) the debtor must have rights in the collateral.
3. If a security agreement includes an after-acquired collateral clause, the security interest
attaches when the debtor obtains an interest in the property.
4. A security interest attaches to collateral when (1) the parties agree to create a security
interest, which may be evidenced by an authenticated security agreement, (2) the secured
party gives value, and (3) the debtor obtains rights in the collateral.
5. A PMSI arises when a creditor sells goods to a debtor on credit, retaining a security
interest in the goods for the purchase price.
6. There are three requirements for attachment of a security interest: (1) the secured party
must give value, which includes “the extension of immediately available credit”; (2) the
debtor must have sufficient property rights in the collateral, and (3) finally, for a non-
possessory collateral, the debtor must have signed a security agreement.
7. A security interest a aches to collateral when the par es agree to create a security
interest, the creditor gives value, and the debtor has rights in the collateral.

Perfection (Perfecting)
1. To obtain rights against another claimant to a debtor’s collateral, a secured party must
also perfect its security interest. A creditor can perfect its security interest in goods by: (1)
filing, in the proper public office, a financing statement that is authorized by the debtor in
an authenticated record, or (2) taking possession.
2. A purchase money security interest (PMSI) in consumer goods is automatically perfected
upon attachment.
3. A PMSI is created when a creditor advances credit or provides the funds needed to make
a purchase possible and takes a security interest in the goods purchased.
4. Generally, a security interest in goods may be perfected by filing a financing statement
indicating the collateral.
5. Under Article 9, filing a financing statement is not effective to perfect a security interest
in property subject to a statute requiring a different method of perfection.
6. A PMSI arises when (1) a creditor sells the goods to the debtor on credit, retaining a
security interest in the goods for all or part of the purchase price; or (2) a creditor
advances funds that are used by the debtor to purchase the goods.
7. A PMSI in equipment has priority over conflicting security interests.
8. Where a motor vehicle certificate-of-title statute calls for perfection by notation on the
certificate of title, the filing of a financing statement will not perfect an interest in the
vehicles.
9. A security interest in goods may be perfected by filing a financing statement.
10. A PMSI in consumer goods is perfected automatically upon attachment.
11. Collateral is categorized based on the primary use to which the debtor puts it at the time
of attachment.
12. Consumer goods are those that are used or bought for personal, family, or household
purposes.
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 13. A security interest is automatically perfected upon attachment if the goods are “consumer
goods” and the security interest is a “purchase-money security interest.”
14. A purchase-money security interest is an interest that secures a debt that was incurred in
order to “enable the debtor to acquire rights in or the use of the collateral.”
15. A purchase money secured creditor includes a seller who allows the debtor to purchase
the goods on credit and takes a security interest in the goods sold.
16. Filing is not required to perfect a purchase money security interest in consumer goods,
rather, the security interest is perfected automatically upon its attachment.
17. A security interest in goods may be perfected by the secured party’s taking possession of
the collateral.
18. Where a motor vehicle certificate-of-title statute calls for perfection by notation on the
certificate of title, the filing of a financing statement will not perfect an interest in the
vehicles.
19. Generally, a perfected security interest prevails over an unperfected security interest.
20. A security interest may be perfected by ling as to all kinds of collateral except deposit
accounts and money.
21. A security interest in a non-consumer deposit account is perfected by control.
22. The bank in which the non-consumer deposit account is maintained automa cally has
control over a deposit account.
23. Other means of gaining control over a non-consumer deposit account are: (i) pu ng the
deposit account in the secured party’s name; or (ii) agreeing in an authen cated record
with the debtor and the bank in which the deposit account is maintained that the bank
will comply with the secured party’s orders regarding the deposit account without the
debtor’s further consent.

Priority
1. Between two competing perfected security interests, the first secured party to file or
perfect has priority.
2. A creditor with a perfected security interest has priority over a creditor with an
unperfected security interest in the same collateral.
3. Priority for a security interest in goods may be determined by whether a security interest
in goods continues after the goods have been attached to other goods in which another
creditor has a security interest.
4. Accessions are goods that are physically united with other goods in such a manner that
the identity of the original goods is not lost.
5. Article 9’s general priority rules apply to accessions.
6. If an accession becomes part of a whole that is subject to a security interest perfected in
compliance with the requirements of a certificate-of-title statute, the security interest in
the whole has priority over the security interest in the accession.
7. As between two perfected secured creditors, generally the first to file or perfect has
priority.
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 8. When the collateral of one creditor becomes united with the collateral of another, each
creditor’s collateral is an “accession to the other creditor’s collateral, and the two items of
collateral together are regarded as “the whole.”
a. Whether either creditor’s security interest applies to “the whole,” or applies on to
its original collateral, “turns on the description of the collateral in that creditor’s
security agreement.”
9. Generally, a perfected security interest in goods is good against subsequent buyers.
10. “Garage sale” rule - If a buyer of consumer goods resells them to another consumer for
value, that second consumer takes free of security interests of which he has no
knowledge, provided he makes the purchase before any financing statement covering the
goods has been filed.
11. The garage sale exception applies only when the second consumer purchases the
collateral for value.
12. If a secured party consents to a sale, lease, or other transfer of the collateral free of the
security interest, the transferee will take free of the secured party’s perfected security
interest.
13. A buyer in the ordinary course of business (BIOC) buys goods in the ordinary course of
business from a seller engaged in the business of selling them.
14. BIOC’s can take goods free of nonpossessory security interests unless they know the sale
violates a security agreement.
15. A security interest continues in collateral, even after a sale or other disposition of that
collateral, unless the creditor authorized the disposition “free of the security interest” or
another Article 9 exception applies.
16. Priority between two perfected security interests is governed by the first-to-file-or-perfect
rule.
17. As between the unperfected secured creditor and the perfected secured creditor, the
perfected secured creditor has the superior claim to the collateral.
18. A prior perfected security interest in collateral trumps a judicial lien.

Financing Statements
1. For a nancing statement to be e ec ve, it must contain three pieces of informa on: (i)
the name and mailing address of the debtor; (ii) the name and mailing address of the
secured party; and (iii) an indica on of the collateral covered by the nancing statement.
2. Minor errors in the debtor’s name will not render the nancing statement ine ec ve,
unless those errors make the nancing statement “seriously misleading.”
3. If the debtor is a registered organiza on (e.g., a corpora on, limited partnership, or
limited liability company), the debtor’s name must match the name on the debtor’s
public organic record.
4. Use of the debtor’s trade name is insu cient.
5. An incorrect name is not seriously misleading if the nancing statement would be
discovered in a ling o ce search under the debtor’s correct name, using the ling
o ce’s standard search logic, if any.
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 Conflict of Laws
1. The federal district court in a diversity case must apply the conflict of laws rules of the
state in which it sits.
2. The “most significant relationship” approach of the Second Restatement seeks to identify
the state with the most significant relationship to the issue at hand and then apply that
state’s law.
3. The court will look at the specific contacts with each jurisdiction and evaluate their
relative importance.
4. The court will consider policy principles, such as the needs of the interstate or
international system, the relevant policies of the forum and other interested jurisdictions,
whether the application of a specific law will further its basic policies, and whether
application of a particular law will aid certainty, predictability, and uniformity of results.
5. In determining which state has the most significant relationship to both the occurrence
and the parties, the court in tort cases, will take these specific contacts into account: the
place of the injury; the place where the conduct causing the injury occurred; the domicile,
residence, nationality, place of incorporation, and place of business of the parties; and the
place where the relationship, if any, between the parties is centered.
6. A federal court exercising diversity jurisdiction over non-federal claims must apply the
choice-of-law rule of the state in which it sits.
7. Under the Second Restatement’s approach, issues in tort are governed by the law of the
state that has the most significant relationship to the occurrence and the parties.
8. Most significant relationship in torts cases is determined by: (1) the place where the
injury occurred, (2) the place where the conduct causing the injury occurred, (3) the place
of incorporation, and place of business of the parties, and (4) the place where the
relationship, if any, between the parties is centered.
9. Where contacts are thoroughly split among so many jurisdictions, in a tort case following
the Second Restatement, a court will ordinarily focus its attention on the policies of the
laws that are in conflict and, in particular, on any interest of its own state in having the
policies apply to the case.