CL_outline.txt 2014-04-22 1 ৺৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৽ 2 ৷ [K] ৷ 3 ╚৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶╝ 4 5 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 6 & Fair Dealing (Foreclosure Sales/Auctions) 7 8 RULE - right of redemption for one year 9 (+) betters position of mortgagors 10 (-) harms expectations of potential buyers 11 12 RULE - mortgagee selling property bound by [1] statutory procedural reqs [2] duty of good faith & due diligence to mortgagor (essentially FD) 13 RULE - mortgagee must exert every reasonable effort to obtain a fair and reasonable price under the circ 14 RULE - bad faith = intentional disregard of duty OR purpose to injure 15 EX: finding that mortgagee had or should have had knowledge of his ability to get a higher price at an adjourned sale 16 EX: actions by mortgagee that discourage other buyers at a foreclosure sale 17 18 RULE - for unfair price 19 - if bad faith, damages = FMV - sale price 20 - if bad diligence, damages = fair price - sale price 21 - NB: FMV may be greater than fair price 22 23 RULE - BOP on bank in action to recover unsatisfied balance after foreclosure proceeding 24 25 [H] - where auction resulted in only one low bid, and house was sold for more soon after, mortgagee failed to exercise good faith and due diligence in obtaining a fair price - no bad faith here, but !suff due diligence 26 [H] where a breach of FD owed by mortgagee to mortgagor is the result of affirmative negligence, the defense of commercial unreasonableness cannot be waived 27 28 POLICY - incentives - sale of home in default 29 (-) mortgagor may non-optimally: upkeep / improve / advertise / market 30 (-) mortgagor may hold back or keep secret other bidders to depress the price 31 32 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 33 Warranties (one-testicled dog) 34 35 RULE - factual question - what representations induce the buyer to enter into contract with the seller 36 37 RULE - IWOFPP - EX: defects which an exam ought in the circumstances to have revealed 38 RULE - IWOM only applies if the seller is a "merchant" (= a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction) 39 40 RULE - express warranty reqs 41 [1] seller must make affirmation of fact/purpose or describe the goods 42 - ALT RULE - this is a factual question 43 - factors for opinion v. warranty 44 - lack of specificity in the statement made 45 - must be more than mere opinion or "puffing" 46 - statement made in an equivocal manner 47 - statement which reveals that the goods are experimental in nature 48 [2] representation must be part of the basis of the bargain 49 - TEST = whether a reasonable person in the position of the buyer would find the statement reliable 50 - circ surrounding sale 51 - reasonableness of buyer in believing seller 52 - reliance placed upon seller's statement by buyer 53 - RULE - parties must discuss the representation for it to be part of the basis for the purchase 54 - RULE - veterinarian's statement at seller's request becomes part of the basis for the purchase 55 [3] breach

Page 1 CL_outline.txt 2014-04-22 56 - EX: seller says he will guarantee horse to be solid and sound 57 58 RULE - only where ignorant buyer is understood to be relying on knowledgeable seller will statements as to soundness be taken as an express warranty 59 60 [H] - court may look to substance of warranty over express terms 61 [H] - horse's inability to breed breaches IWOM and express warranty 62 63 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 64 / Third Party Beneficiary (A Chewer) 65 66 DEF "intended beneficiary" = has right to performance if [1] necessary to effectuate the intention of the parties and [2] the performance will either satisfy an obligation of promisee to pay money to beneficiary or circ indicate that promisee intends to give the beneficiary the benefit of the promised performance 67 68 TEST - does the contract manifest an intent to benefit a third party? 69 - will promised performance be of pecuniary benefit to the TP? does promisor know or have reason to know this? 70 - MAJ RULE - intent of promisee controls 71 - MIN RULE - intent of promisor controls / intent of both controls 72 73 [H] subcontractor is a third party beneficiary because various articles of the contract explicitly contemplated the provision of services by the subcontractor to the owner 74 75 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 76 Disclaimers (Datamagic - software failure wipes data) 77 78 NB: scroll-down requirement might change the analysis 79 NB: UCC applies here - covers "transactions" in goods, not only sales 80 81 EX: Is this a contract? 82 - was there ? 83 - free to evaluate 84 - evaluation itself is the bargained-for consideration - business opp to seller 85 86 EX: Is the disclaimer binding? 87 - yes, had to click - no, that's just a condition - Williston's tramp 88 - no, attention not specifically called - no scroll req 89 - yes, actual knowledge / specific warning by top of contract / emphasis in typeface 90 - yes, this provision is universally used in of this kind 91 92 [Pioneer Theatre] 93 - D: contest merely an offer to make a gift 94 - P: presence at theatre was the desired consideration 95 - P: consideration = any act or forbearance 96 - RULE - a promise which the promisor should reas expect to induce action or forbearance of a definite and substantial character on the part of the promisee, and which does induce such action or forbearance, is binding if injustice can only be avoided by enforcement of the promise 97 98 RULE - contractual disclaimer on back of ticket !enf unless brought to notice or attention 99 - applies when disclaimer appears on something not related to contract itself (EX: ticket), or which is given to ostensibly for some other purpose 100 - timing - an act which precedes notice of the contract cannot constitute acceptance of the contract 101 102 RULE - universal duty to read - court will treat party as if they read the contract 103 104 POLICY - could not deal in modern world without these EULAs and other Ks of adhesion 105 106 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 107 Conditions precedent/subsequent (Bonus) 108 109 RULE - social contracts !enf

Page 2 CL_outline.txt 2014-04-22 110 111 RULE - BOP on party that must pay but for the occurrence of the condition 112 113 RULE - state - mere negligence !suff to forfeit contract 114 RULE - when the default has not been serious and the vendee is willing and able to continue with his performance of the contract, the vendor suffers no damage by allowing him to do so 115 116 [H] - provision for December delivery was the essence of the contract - non-occurrence of the condition entitled other party to rescind/discharge contract 117 118 POLICY - small carelessness with no damage to other party 119 - why hose the trivial breacher? - strategic behavior? 120 - administrability v. equity 121 - historical movement from rule to standard and back again 122 123 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 124 Frustration/ (Agate Dog - dog escapes; gets tangled) 125 126 RULE - if harm was reasonably foreseeable, party should have anticipated it - look to relevant practice/custom 127 128 RULE - where performance depends on the continued existence of a given person/thing, a condition is implied that the of performance arising from the perishing of the person or thing shall excuse the performance 129 130 RULE - impracticability - where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circ indicate the contrary 131 132 RULE - frustration - where party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his performance is excused, unless contrary language/circ 133 - EXCEPTION - cannot apply where frustration reas fore (strictly interpreted - obj std) and thus should have been anticipated in contract 134 = performance still possible, but failure of consideration or total destruction of the expected value of the performance 135 136 TREND - impracticability for goods/services; frustration for $$ 137 138 [H] - burned music hall - hall's continued existence an implied condition of the contract - thus performance excused 139 [H] - horse kidnapped = legally tantamount to destruction of the contract's foundation 140 [H] - underground warehouse fire reas fore, so no frustration 141 142 POLICY - discerning fault is !admin 143 POLICY - plaintiff should procure alternative performance - damage measure is difference in cost 144 POLICY - who is the best / most efficient precaution-taker? 145 146 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 147 Impossibility (== Impracticability) (Alvert's Pool) 148 149 RULE - performance excused if rendered impossible by change in law 150 151 CL RULE - when impossibility, leave the loss where the contract places it 152 RULE - for impossibility, performance must necessarily depend on the existence of a particular thing 153 154 RULE - impossibility reqs 155 [1] unexpected occurrence of an intervening act 156 - must be unforeseen and unusual 157 [2] such occurrence was of such a character that its non-occurrence was a basic assumption on which the contract was made

Page 3 CL_outline.txt 2014-04-22 158 [3] that occurrence made performance impracticable 159 160 RULE - risk of governmental interference placed on the party who has contracted to render performance 161 162 [H] - reas fore that prohibition would spread to county and render saloon use impossible 163 164 POLICY - who is the optimal risk-bearer? 165 - who can better estimate the probability of loss? 166 - who can better estimate or influence the magnitude of loss? 167 - who can better insure against loss? 168 POLICY - no matter how comprehensive the contract, events will always happen outside its language, so move on to the allocation of risk 169 POLICY - why imply a condition? - to supplement the defects of the actual contract / lack of anticipation by parties 170 171 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 172 Allocation of Risk / Frustration (Bonefish) 173 174 EX: guide doesn't charge; he bears the risk of the bonefish 175 176 RULE - [Miami Beach] - you promised, you lose 177 178 CL RULE - promisor of performance bears all risks 179 MOD RULE - promisor bears only those risks that are reas fore 180 181 RULE - frustration reqs: 182 [1] contract must be at least partially executory 183 [2] frustrated party's purpose in making the contract must have been known to both parties when contract was made 184 [3] this purpose must have been basically frustrated by an event not reas fore at the time the contract was made; not fault of frustrated party; and risk not assumed by frustrated party 185 RULE - if the above are satisfied, performance excused unless the language or the circumstances indicate the contrary 186 187 [H] - injured boxer does not render venue leasing impossible 188 189 POLICY - [Kuhn] - TRAYNOR - does equity demand reallocating the risks? 190 - is the risk unforeseeable? 191 - does the occurrence vitally change the performance? 192 - does the occurrence make one party's performance virtually worthless to the other? 193 194 POLICY - what is foreseeable? 195 - every specific risk is not foreseeable, but general classes of risks are foreseeable 196 197 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 198 Bailments (Baxendale's Boat) 199 200 DEF - gratuitous bailment = no payment to bailee 201 202 EX: keys = access control / custody / dominion, thus responsibility 203 204 RULE - no bailment without delivery and clear transfer of control 205 [1] delivery by bailor 206 [2] acceptance by bailee 207 [3] placed in actual or constructive possession of bailee 208 - RULE - bailee's exclusive control required 209 - EX: transfer of keys? 210 211 RULE - back-of-ticket contract !enf unless attention called to it 212 213 RULE - ev of prior similar accident adm [1] to show existence of dangerous condition [2] to show D's knowledge thereof 214

Page 4 CL_outline.txt 2014-04-22 215 RULE - whether or not there is a bailment det by circ 216 217 RULE - no presumption of negligence against bailee merely because property comes to harm while in his possession 218 219 RULE - bailment puts initial BOP on D 220 221 TREND - unclear - some courts require notice/awareness of liability limitation in bailment - others look to voluntariness of bailment contract 222 223 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 224 Gifts / Consideration (Beresford) 225 226 RULE - completed gift requires delivery 227 228 DEF "consideration" 229 = HX = benefit to promisor and detriment to promisee 230 = MOD = bargained-for exchange 231 = any abandonment of legal right or limit on legal freedom to induce the promise 232 = act other than promise 233 = forbearance 234 = creation, modification, or destruction of a legal relation 235 = return promise, bargained for and given in exchange for a promise 236 237 [Kirksey] - possibly bargaining to see his sister-in-law, but most likely a conditional gift 238 239 RULE - gift reqs: 240 [1] intention to give on part of donor 241 [2] actual or constructive delivery to donee 242 [3] termination of donor's dominion over the subject of the right 243 [4] dominion in the donee 244 245 [H] - Kirksey loss and inconvenience of move a suff consideration 246 - but held to be a gratuitous promise, with move merely a condition 247 248 NB: gift's purpose could be accomplished with trust - instruct trustee to pay money when siblings reconcile 249 NB: Williston's tramp 250 251 POLICY - core of contract = reciprocal inducement 252 253 TREND - seal/formalities no longer enforceable as binding 254 255 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 256 Gift contracts (Garell Dorn) 257 258 HX RULE - actual delivery required for gift 259 MOD RULE - symbolic delivery sufficient if conditions adverse to actual delivery 260 - look to circ / surroundings 261 - look to nature of the subject property 262 263 RULE - inter vivos gift revocable; causa mortis gift irrevocable 264 RULE - gift is recovable until donor has divested self absolutely and irrevocably of the title, dominion, and control of the gift 265 266 RULE - gift causa mortis elements: 267 - made in view of donor's impending death 268 - donor must die of the disorder or peril 269 - delivery of thing given - actual, unequivocal, complete during lifetime of donor, divesting wholly of possession/dominion/control 270 - donor must be competent to make the gift 271 - donor must have intent to give 272 - donee must accept the gift 273 RULE - donee must prove both delivery and donative intent 274 275 TREND - many courts enforce assignments of future expected sums 276 TREND - gifts based on parol ev struck down

Page 5 CL_outline.txt 2014-04-22 277 TREND - gifts based on delivery of instrument of gift sustained 278 279 [H] delivery of key to box !suff 280 [H] - court will accept plain meaning of gift instrument - "I give this day" = present gift, not an intent to make a future gift 281 282 POLICY - gifts causa mortis disfavored - irrevocable, and generally not much proof after donor's death 283 POLICY - why require delivery of gift? 284 - want to narrow this exception to the of Wills (formalism) 285 - otherwise any writing can effectuate a testamentary transfer 286 287 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 288 Installment Contracts (Bill's Buffaloes) 289 290 DEF "installment contract" = one which requires or authorizes the delivery of goods in separate lots to be separately accepted 291 292 RULE - separate contracts v. installment contracts 293 - negotiated once for all? >> installment contract 294 - one piece of paper? >> installment contract 295 - did parties understand that the goods would be delivered in separate installments? >> installment contract 296 297 RULE - when reas grounds for insecurity arise, other party may demand adequate assurance of due performance, suspending performance until he receives it 298 299 RULE - an installment contract need not authorize deliveries at times chosen by the seller or specified in the contract; it may instead authorize deliveries at times chosen by the buyer 300 301 Single contract >> perfect tender 302 Installment contract >> substantially-impairs-value standard 303 304 RULE - buyer may reject nonconforming goods if the defects substantially impair the value of the installment 305 RULE - if the nonconformity is curable and the seller gives adequate assurances of the cure, buyer must accept the installment - seller has reasonable time to effectuate the cure 306 RULE - no right to cancel unless the nonconforming goods substantially impair the value of the entire contract 307 RULE - no right to cancel unless material inconvenience or injustice will result if the aggrieved party is forced to wait and receive an ultimate tender minus the part or aspect repudiated 308 309 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 310 Anti- clause (Doughnut franchise) 311 312 RULE - a lessor may refuse consent to an assignment or sublease only when the lessor has a good-faith reasonable objection to it 313 RULE - implied covenant of good faith and fair dealing 314 315 [H] - franchisee must comply with terms of anti-assignment clause - must receive acceptable bona fide offer and communicate this to the franchisor in writing 316 317 TREND - anti-assignment clauses generally upheld as valid and enforceable 318 319 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 320 / Concealment / Disclosure (Tusk Kerr contract) 321 322 DEF "mistake" = fact existing at time of contract but unknown to parties 323 DEF "excuse" = event arising after time of contract, making performance more onerous 324 DEF "" = event arising after time of contract that makes the value of the performance owed to one party worthless, or nearly so, in his hands 325 326 RULE - if there is a difference as to the substance of the thing bargained for, or a difference in substance in the thing actually received, then there is no contract 327 RULE - mistake must go to the substance of the whole contract - to the root of the

Page 6 CL_outline.txt 2014-04-22 matter 328 RULE - mistaken fact must exist at time of contract and be known to one or both parties 329 330 RULE - mistake elements: 331 - basic assumption on which the contract was made 332 - material adverse effect on performance 333 - party may if he does not bear the risk of the mistake - bears risk if: 334 - allocated to him by the contract 335 - OR he is aware at time of contract of his limited knowledge and treats this limited knowledge as sufficient 336 - OR risk is allocated to him by the court - reas/circ test 337 338 [H] - barren cow a substantially different creature than a breeding one 339 [D!] - there was no mistake here - P's intent was always attempted breeding 340 341 TREND - parties rarely successful in discharging obligations on grounds of mistake/impossibility/frustration 342 343 NB: total failure of consideration is a broader doctrine than frustration of purpose or commercial impracticability 344 345 POLICY - enforcing contracts as written v. protecting parties from their costly mistakes 346 - "it is not the duty of courts to destroy contracts when called upon to enforce them, after they have been legally made" 347 348 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 349 / Disclosure 350 351 TEST = in equity / good conscience / justice / fair dealing, ought you to disclose? 352 353 RULE - fraudulent concealment - must show that party had duty to disclose the information: 354 - party has duty to disclose if party has stated facts they know will create a false impression unless other facts are disclosed 355 - parties to business transaction must disclose: 356 - matters known because of parties' relation of trust and confidence 357 - facts basic to the transaction - if other party is mistaken as to them, and would reasonably expect disclosure 358 - facts necessary to prevent previous statements from being misleading 359 - subsequent information that makes previous statements untrue/misleading 360 361 RULE - fraudulent concealment elements: 362 [1] D's concealment of material existing fact that in equity or good conscience should be disclosed 363 [2] D's knowledge that fact was being concealed 364 [3] P's ignorance of the fact 365 [4] D's intent that P act on the concealed fact 366 [5] P's action on the concealment resulting in damage 367 368 RULE - party rightfully on property does not have a duty to disclose knowledge of the land to the seller of the land who does not have the same knowledge 369 370 RULE - duty of full disclosure arises where representations reasonably induce a false impression as to material factors of the bargain 371 372 HX RULE - caveat emptor 373 MOD RULE - caveat emptor being abandoned where equity demands it 374 375 RULE - vendor of property has duty to disclose concealed defects in the property that are known to the vendor and that purchaser's careful examination would not disclose 376 377 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 378 Quasi-contract / Restitution (Mosquito Spraying) 379

Page 7 CL_outline.txt 2014-04-22 380 DEF "restitution" = restoration required to prevent UE 381 DEF "restitution" = "quasi-contract" = "contract implied in law" 382 DEF "" = [1] person has received benefit and [2] retention of the benefit would be unjust 383 384 RULE - UE reqs: 385 [1] benefit was conferred on D by P 386 [2] D appreciated the benefit - whether the goods/services received are of value to D 387 [3] D accepted the benefit and under circ it would be inequitable for it to be retained without payment 388 - MIN RULE - some courts require that the injustice be some type of improper, deceitful, or misleading conduct 389 390 RULE - owner not liable to contractor for improvements unless he agreed to pay them 391 RULE - a person who has conferred a benefit upon another as the performance of a contract with a third person is not entitled to restitution from the other merely because of the failure of performance by the third person 392 - POLICY - unjust for contractor to go unpaid, but also unjust to impose debt on owner merely to rectify first injustice 393 394 RULE - an officious intermeddler / mere volunteer who, with request therefor, confers a benefit upon another is not entitled to restitution 395 RULE - restitution not available to one who confers a benefit on another merely incidental to the pursuit of his own interests 396 397 RULE - - may be denied equitable relief if his conduct has been inequitable/unfair/dishonest/fraudulent/deceitful 398 - [H] - no UE claim lies where improver did not have clean hands 399 400 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 401 Consequential Damages ($17.60 - steel testing) 402 403 RULE - to recover lost profits, must show [1] causation [2] notice of special circ 404 - tester must be made aware of its exposure to liability for lost profits at time of contracting 405 - may also consider sophistication / repeat players 406 - intent of contract evidenced by [1] contract terms [2] contract price 407 - EX: certificates of proper weight 408 - EX: accurate inspection for cleanliness of cargo hold - sole purpose is to guarantee condition of hold 409 TEST - court will look to disparity between asserted damages and testing fee 410 411 RULE - to avoid disproportionate compensation, court may exclude recovery for lost profits or limit recovery to loss incurred in reliance 412 - non-commercial situations 413 - informal contracts 414 - extremely disproportionate damage v. fee 415 416 [H] - party paying for testing pays for it to be performed with a reasonable degree of accuracy 417 [H] - a shipowner is not entitled to rely on a classification certificate as a guarantee to the owner that the vessel is soundly constructed - shipowner ultimately controls activities aboard ship - *purpose* of cert is for insurance rates, not safety 418 419 POLICY - UCC's purpose is to provide default rules - don't force the parties to allocate risk 420 421 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 422 LDCs (Grand Trip) 423 424 DEF - penalty versus LDC - penalty is for the purpose of securing/coercing performance, while LDC is the sum to be paid in event of non-perf 425 426 RULE - duty to mitigate damages / search for replacement performance 427 428 RULE - a purchaser whose breach is not willful has a restitutionary claim to

Page 8 CL_outline.txt 2014-04-22 recover moneys paid that unjustly enrich the seller 429 430 RULE - LDC will not be enforced where no damages ensued from the breach that actually occurred 431 432 RULE - LDC allowing seller to retain 10% of contract price is presumptively reasonable 433 - [H] an LDC designed always to assure party receives more than its actual damages is a penalty 434 435 RULE - the relevant time to measure the seller's damages is at the time of breach 436 - damages = economic loss + time spent + search costs in procuring replacement performance 437 438 RULE - BOP on challenging party to show that LDC is so disproportionate to actual damages as to constitute a penalty 439 440 SPLIT - courts divided on whether to treat willful breachers favorably 441 442 [H] - Fox actress case - studio substitutes one movie for another - Fox never promised to make the first film, so no breach and no duty to mitigate - instead, a "take or pay" contract case 443 444 POLICY - compensatory damages should be sufficient to deter inefficient breaches 445 (-) thus penal damages must deter some efficient breaches 446 - courts should not display parental solicitude for large corporations 447 448 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 449 Unjust Enrichment (UE) - (icon artist) 450 451 RULE - UE elements: 452 - D received a benefit 453 - by receiving benefit D was unjustly enriched at P's expense 454 - circ are such that in good conscience D should make compensation 455 456 RULE - for personal satisfaction contracts, standard is whether reas/circ would accept the performance 457 458 RULE - no application of unjust enrichment to the owner where an explicit contract exists between the sub-K and the prime K 459 - might apply if owner makes assurances to sub-K directly 460 461 RULE - to establish UE, must show that it was not intended or expected that the services be rendered or the benefit conferred gratuitously, and that the benefit was not conferred officiously 462 463 RULE - person who mistakenly increases the value of another's chattels is not entitled to value of services/increase, but if the owner of the chattels brings an action for conversion, the value of the services/increase is deducted from the damages 464 - NB: if the addition is removable parts, they may be removed 465 466 [H] - party not unjustly enriched when it performs its contractual obligations and receives only what it is entitled to receive under the contract 467 468 POLICY - more harsh to require one receiving mistaken benefits to pay, than for the one giving mistaken benefits to go uncompensated 469 470 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 471 IICR (Intentional Interference with a Contractual Relation) 472 473 RULE - IICR elements 474 [1] contract 475 [2] wrongdoer's knowledge of the contract 476 [3] intentional procurement of breach 477 - RULE - must be initiated by third party 478 - RULE - there need not be an actual breach 479 - [H] - intentional procurement of potentially meritorious lawsuit based on

Page 9 CL_outline.txt 2014-04-22 contract is permissible 480 - RULE - must be with contractual relation, not merely a term of the contract 481 - EX: making performance more costly or burdensome 482 - MIN RULE - only proof of *interference* required 483 [4] (?) absence of legitimate business justification - squishy! 484 - NB: some courts do not include this element 485 - POLICY - stability v. competition - choice/certainty/contract formality/security for local businesses 486 - POLICY - eco eff - better price? frees up capital? 487 - [H] - it is altogether legitimate for a provider of services to persuade potential purchasers of those services that it can do the superior job 488 - must not act out of malice to ruin or damage the other's business 489 [5] resulting damages 490 - interference must be shown to be the BFC of the breach 491 492 POLICY - efficient breach v. actions for IICR 493 494 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 495 SOF (Golf club sale e-mails) 496 497 CL RULE = offer = goods, quantity, signed 498 499 RULE - contract reqs: 500 [1] writing signed by the party sought to be charged 501 - not formal - any method of authentication 502 - typed signature suff? - a factual question - look to intent of signer 503 [2] for sale of goods 504 [3] quantity is shown 505 - [H] - quantity term sufficient even if not absolutely definite - projected yield/acre 506 - NB: other terms may be left open / supplied by UCC defaults 507 - as long as parties intended to make a contract and there is reas certain basis for remedy 508 509 NB: dishonest party may later claim that future negotiations were contemplated as an escape hatch 510 511 CL RULE - covers sales >$500 512 - EXCEPTION - where party against whom enforcement is sought admits in court that a contract for sale was made 513 - EX: where D swears in an affidavit that there is no contract, suit dismissed 514 - POLICY - must dismiss in such cases, otherwise SOF is not much defense for D 515 516 ৺৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৽ 517 ৷ [PROP] Property ৷ 518 ╚৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶╝ 519 520 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 521 Property Rights (Animal Companions) 522 523 RULE - live creatures not patentable subject matter - must be non-naturally occurring manufacture or composition of matter 524 525 [H] - acts of crew bind the interest of the owner of the ship, whether he is innocent or guilty 526 527 RULE - innocence of owner of property subject to forfeiture not a defense 528 529 RULE - alienation of affections reqs 530 [1] happily married with genuine love and affection 531 [2] love and affection alienated and destroyed 532 [3] wrongful and malicious acts of D produced the alienation of affections 533 - NB: == an injury to person or property 534 535 POLICY - origin of property rights - Lockean labor-dessert theory 536 - natural rights 537 - rights flow from government 538 - legal ownership

Page 10 CL_outline.txt 2014-04-22 539 - de facto ownership 540 541 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 542 Lost/Abandoned Property (Bascom's Folly) 543 544 EX: horse case - NOT lost; NOT mislaid; MAYBE abandoned 545 546 RULE - abandonment = actual separation + intent to abandon 547 548 RULE - finder of lost property has superior claim to all but TO 549 - possession itself is prima facie ev of title 550 - thus, can only displace finder with a better title 551 - finder has duty to hold for TO, if TO can be ascertained 552 553 CL RULE - found property on surface belongs to finder; found property subsurface belongs to King 554 555 RULE - "lost" property = that which owner has involuntarily parted with through neglect, carelessness, or inadvertence 556 >> belongs to finder 557 RULE - "mislaid" property = that which owner intentionally places and then forgets 558 >> belongs to landowner 559 RULE - buried property 560 >> belongs to landowner unless TO can be established 561 RULE - "abandonment" = intentional reliquishment of a known right >> must show intent 562 - lapse in time is relevant 563 - non-use of property is relevant 564 565 RULE - title does not pass if seller is ignorant of contents 566 567 [H] - valuables in bank's sold file cabinets not abandoned because no intention to abandon 568 569 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 570 Attractive Nuisance (Baum Pool) 571 572 RULE - attractive nuisance = landowners are liable if: 573 [1] they know or should know that children are likely to trespass 574 [2] and that a dangerous condition exists 575 [3] and the injured child is too young to discover/understand the danger involved - contributory negligence of older children is fact question for jury under [Talley] 576 [4] and an ordinarily prudent landowner would have remedied the condition - were inexpensive and effective remedial measures available? - if so, will reach a jury under [Gerchberg] 577 578 RULE - attractive nuisance liability must be based on *latent* dangers 579 RULE - attractive nuisance must attract from *outside* the premises (pre-trespass) 580 RULE - landowner has duty to refrain from willfully, wantonly, or recklessly injuring trespassers 581 582 Categories: 583 [1] trespasser 584 [2] licensee - social guest 585 - duty = must refrain from wilfully/wantonly/recklessly injuring 586 [3] invitee - express/implied invitation for personal/mutual benefit 587 - duty = reas/ord care for safety - protect and warn of dangers 588 589 MOD RULE - all persons should be required to use ord/circ care to prevent others from being injured as a result of their conduct 590 591 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 592 Encroachment (Sponsor's Hall) 593 594 [Yeakel] - 2" by 12' encroachment deemed "de minimis non curat lex" 595 - [H] - P cannot later contest encroachment which P consented to and utilizes 596 - RULE - need nexus between alleged harm and enroachment 597 - RULE - will not oblige encroacher to undergo large expense at no benefit to P 598

Page 11 CL_outline.txt 2014-04-22 599 RULE - can't recompense encroachment with damages - converts property right into liability right - deprives owner of choice inherent in ownership 600 601 RULE - good-faith improver's encroachment may be permitted - look to circ, degree of negligence 602 603 [H] - wall must be removed; court costs split between parties 604 605 POLICY - statutory solution with a buffer zone for edge walls would solve most encroachment cases 606 POLICY - property rules v. liability rules 607 - property rules promote an efficient process of exchange when transaction costs are low 608 - liability rules promote an efficient process of exchange when transaction costs are high 609 610 POLICY - strict encroachment rule better 611 (+) deters de minimis trespassers 612 (+) provides appropriate remedy to landowner 613 (+) can be used to settle boundary disputes 614 (+) prevents windfall to encroacher at landowner's expense 615 (+) provides an avenue through which an easement by prescription can be terminated 616 617 POLICY - crystal rules v. mud rules 618 - crystal rules 619 (+) notice 620 (+) certainty 621 (+) lowers litigation volume 622 (+) administrable 623 (-) accounts for few facts/circ 624 - mud rules 625 (+) better fit to the standard 626 (-) requires prioritization of cross-cutting factors 627 - BOTH 628 (-) overinclusive 629 (-) underinclusive 630 631 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 632 Animal/Resource Ownership (elk diverted) 633 634 CL RULE - must occupy FN animal - pursuit and wounding are !suff 635 [1] must bring under power and control 636 [2] must maintain control as to show that he does not intend to abandon them again 637 EX: enclosure + reas precautions to prevent escape 638 639 RULE - mortal wounding sufficient for possession 640 RULE - trapping/netting sufficient for possession 641 ALT RULE - possession of FN animal if the pursuer be within reach or have a reasonable prospect of taking/converting 642 [D!] Livingston's dissent - should have submitted case to sportsmens' arbitration 643 644 CL RULE - natural gas - every landowner may locate his wells wherever he pleases, regardless of the interests of others 645 RULE - may drill anywhere but must fairly allocate royalties to reflect gas coming from other parcel 646 647 Owners' Options 648 - arms race 649 - attempt to buyout 650 - litigation 651 652 POLICY - Pareto Efficiency = equal or greater social welfare for all affected 653 POLICY - example of tragedy of the commons 654 655 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 656 Adverse Possession - (Nora Charles and Asta) 657 658 POLICY -

Page 12 CL_outline.txt 2014-04-22 659 - detrimental reliance by AP 660 - sleeping on rights / abandonment by TO 661 662 CL RULE - AP reqs: 663 [1] open & notorious 664 - EX: fencing/enclosure - but not if merely for convenience 665 - RULE - satisfied if TO knows 666 [2] continuous 667 - for statutory period - usually 5yr 668 - RULE - a temporary break or interruption of reasonable duration does not destroy continuity 669 - fact-bound inquiry - circ of land/case 670 - abandonment is also a question of fact 671 [3] exclusive 672 [4] under color of title / claim of right 673 - mistaken good-faith belief raises presumption of claim of right 674 - but mistake not required 675 - RULE - need to have intent to claim title - mistake !suff for title 676 - ALT RULE - look to acts, not intent 677 [5] (?) hostile 678 - RULE - AP must be in possession as owner, clearly against TO 679 - ALT RULE - AP must treat the land as his own as against the world throughout the statutory period 680 - does not turn on AP's subjective beliefs 681 682 RULE - land must be contiguous and all used for same purpose 683 RULE - separate ev required for AP of each tract 684 685 RULE - an easement created by grant may be extinguished/diminished by adverse use 686 687 POLICY - extent of AP - whole parcel? or portion actually used? 688 689 POLICY - AP 690 (+) max utilization of land 691 (+) encourages rejection of stale claims 692 (+) quiets titles 693 694 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 695 Easements - EIG / EA (Calfpasture River) 696 697 DEF "profit a prendre" = right or privilege to adquire, by several or removal from another's land, some thing or things previously constituting a part of the land or pertaining to the land 698 699 NB: spelling = appurtenant 700 701 EA = with land = passes to grantee, even if not mentioned in deed 702 - assignable and divisible 703 - RULE - divisible only if the easement can be enjoyed as to separate parcels without any additional burden on the servient tenement 704 - [H] - right to hunt land is an interest in the real , an incorporeal hereditament 705 EIG = to individual = not assignable/inheritable UNLESS creating instrument makes it so 706 - RULE - may be made assignable 707 - RULE - not divisible - policy concerns about excessive use 708 - RULE - "one stock rule" - can assign to two or more persons, but they must work it together as one stock 709 - RULE - must not assign to others so as to increase the burden on the servient estate 710 711 RULE - default presumption of EA, not EIG 712 TEST - if the easement is in its nature an appropriate and useful adjunct of the land conveyed, having in view the intention of the parties as to its use, and there is nothing to show that the parties intended it to be a mere personal right, it should be held to be an EA and not an EIG 713 714 RULE - contract interpretation - expressio unius est exclusio alterius

Page 13 CL_outline.txt 2014-04-22 715 716 RULE - adverse enjoyment of an EIG can ripen into a title by prescription (EX: bathing rights) 717 718 THM RULE - exclusive hunting privilege cannot be segregated from the fee of the land, except by a license revocable at the death of either party, or when the fee of the land is alienated 719 720 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 721 Easements (Defeat of Jesse James Day) 722 723 [I] should easement with unqualified right of crossing be limited to a reasonable number of persons? 724 725 TEST 726 - is the easement ambiguous? 727 - if yes, then look to extrinsic ev 728 - if no, then interpretation is confined to the easement's terms 729 - RULE - the easement should not be enlarged by legal construction beyond the objects originally contemplated or expressly agreed on 730 - POLICY - formalism v. pragmatism 731 - [H] - easement that specifically defines all of a party's rights and responsibilities not ambiguous 732 - [H] - will not enlarge road easement to include gate; but will enlarge road easement to include guardrail barriers 733 734 RULE - construe easement strictly against the grantor 735 - POLICY - but grantee (public utility) usually drafts with a developer 736 - POLICY - grantee is repeat player; grantor has practically no power 737 (-) disincentivizes grants between equally-powered parties 738 739 RULE - implied easements may be limited based on a reasonableness interpretation, but not express easements 740 741 RULE - if an easement holder expressly agrees to pay for damages to the servient property as a result of exercising the rights under the easement grant, then the easement holder is liable for such damages without regard to negligence 742 743 RULE - generally, the grant of an easement over land does not preclude the grantor from using the land in a manner not unreasonably interfering with the special use for which the easement was acquired 744 745 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 746 Covenants (The Komondor) 747 748 RULE - reqs for covenant to run with the land 749 [1] enforceable - must not be against public policy 750 [2] intended - must be intended by original parties 751 [3] touch & concern - must closely relate to the land or its use/enjoyment 752 [4] horizontal privity (SPLIT) - between original promisor and promisee 753 [5] vertical privity - required for burdens to run, but not for benefits to run 754 755 RULE - when the reason which called the easement into existence ceases, the easement itself ceases 756 RULE - when original purpose of covenant comes to an end, and the use of the tract has utterly changed, court may grant equitable relief from the covenant 757 - RULE - court will not remove covenant if parties will suffer damage 758 - RULE - changes outside the tract will not support removal of the covenant if the covenant still benefits the owners of the property under restriction 759 - RULE - covenant can outweigh higher-value uses if its purpose is still feasible and benefits still result 760 761 [H] - perpetual covenant continues after current equipment breaks down / becomes obsolete - may be suspended, but does not cease 762 763 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 764 Covenants / Constructive eviction (strip-mall noise) 765

Page 14 CL_outline.txt 2014-04-22 766 RULE - covenants in a lease are independent, unless expressly made dependent, thus breach by one party gives rise only to a suit for damages and does not excuse performance on the part of the other party 767 768 RULE - implied covenant of quiet enjoyment - only exists between landlord and tenant, not between co-tenants 769 770 RULE - landlord may terminate lease on breach of material covenant 771 772 HX RULE - landlord not responsible for activities of tenants 773 MOD RULE - landlord breaches obligation if landlord, or someone whose conduct is attributable to / controllable by him, interferes with a permissible use of the property 774 - can landlord correct or terminate the nuisance-causing actions? 775 776 RULE - landlord need not abate tenant's nuisance 777 - EXCEPTION - if the lessor would be liable if he had carried on the activity himself, and consents or knows or has reason to know activity will be carried on, and knows or should know that it will necessarily involve nuisance 778 779 RULE - if contract is unconscionable at time made, court may: 780 [1] refuse to enforce the contract 781 [2] enforce the remainder of the contract without the unconscionable clause 782 [3] so limit the application of any unconscionable clause as to avoid any unconscionable result 783 784 [H] - if a landlord knows or should know that his month-to-month tenant has created a nuisance and nevertheless continues to rent to the same tenant beyond the time period needed to terminate the lease, he may be held liable if a TP suffers damage as a result of the nuisance 785 [H] - constructive eviction where landlord advised of difficulty; landlord acknowledged responsibility and agreed to remedy and had means to do so; landlord subsequently does nothing 786 787 - landlord's arguments: 788 - freedom of contract - tenant had notice from explicit contract term 789 - no control until lease renewal 790 - tenant should take action themselves, use city noise ordinances 791 - policing tenant disputes is inefficient / too onerous on landlords 792 793 POLICY - landlord is in the best position to remedy the nuisance 794 795 POLICY - we want the rule that minimizes the need for self-help 796 797 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 798 TIC (Frohman church sculpture) 799 800 RULE - offset - profits from property / rental value against repair costs 801 802 RULE - a cotenant may sue for his share of rents/profits from the common property if he has been ousted 803 TEST for ouster = cotenant must have used the property to as to necessarily exclude his cotenant 804 - RULE - ouster must be manifested or communicated from one cotenant to the other 805 - EX: cotenant makes clear demand to use land and cotenant refuses to accommodate him 806 807 RULE - where a cotenant in sole possession makes repairs/improvements without the consent of his fellow cotenants, he generally has no right of contribution 808 - EXCEPTION - repairer acts in good faith belief that he is the sole owner 809 - EXCEPTION - repairs were essential to preserve or protect the common estate 810 811 RULE - VARA - arists have moral rights: [1] attribution [2] integrity 812 RULE - works for hire not protected by VAWA 813 814 TEST - work for hire? - factors: 815 - hiring party's right to control the manner and means by which the product is accomplished

Page 15 CL_outline.txt 2014-04-22 816 - skill required 817 - source of the instrumentalities and tools 818 - location of the work 819 - duration of the relationship 820 - whether the hiring party has the right to assign additional projects to the hired party 821 - extent of the hired party's discretion over when and how long to work 822 - method of payment 823 - hired party's role in hiring and paying assistants 824 - whether the work is part of the regular business of the hiring party 825 - whether the hiring party is in business 826 - provision of employee benefits 827 - tax treatment of the hired party 828 829 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 830 JT / TIC / TBE (Frying Pan Cabin) 831 832 DEF "tenants in common" - can sell or devise the interest 833 - RULE - ousted cotenant entitled to share in the proceeds of the common estate 834 DEF "joint tenants" - sale of interest severs the JT and converts to TIC 835 - four unities: interest, title, time, possession - severing any severs JT 836 - RULE - JT can only convey his interest until death 837 - RULE - lease severs JT 838 - ALT RULE - deed of trust does not convey/sever, but is merely a lien 839 - ALT RULE - lease does not sever JT, but expires upon the death of the lessor JT - because lease not inherently inconsistent with JT 840 DEF "tenants by the entirety" - must be married - one alone cannot convey - ends with divorce or joint conveyance 841 842 RULE - JT has right of survivorship, TIC does not 843 RULE - law favors TIC; disfavors JT - thus often have strict language reqs to establish JT 844 RULE - if unmarrieds attempt TBE, they become TIC 845 ALT RULE - when brothers attempt TBE, they become JT 846 847 POLICY: 848 - crystal rule - require exact language for each form 849 - mud rule - set a default; try to effectuate parties' intent 850 851 ৺৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৽ 852 ৷ [MISC] Statutory Interpretation, ERISA ৷ 853 ╚৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶╝ 854 855 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 856 Statutory reporting duty 857 858 RULE - duty to warn - cause of action under [Tarasoff] - arises when therapist determines or should determine that his patient presents a serious danger of violence to another 859 860 RULE - NH statute - anyone having reason to suspect a child has been abused or neglected must report immediately 861 - must have reasonable cause to believe 862 863 RULE - schools have special relationship to students, duty of reasonable supervision 864 - the duty falls upon those school employees who have supervisory responsibility over students (parental proxy) 865 866 RULE - where school knows or reas should know of employee's propensity for sexually abusing students, school is liable for the foreseeable sexual abuse of students by that employee 867 868 RULE - qualified privilege - applies where court determines that statements made in particular contexts or on certain occasions should be encouraged despite the risk that the statements might be defamatory 869 870 [H] legislature did not intend civil liability to flow from the violation of the reporting statute

Page 16 CL_outline.txt 2014-04-22 871 [H] negligence per se inapplicable to reporting 872 [H] qualified privilege (NOT absolute privilege) applies to psychologists wrt patient records 873 874 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶ 875 ERISA (nose job) 876 877 EX: sick law professor - Dean finds a replacement == unwritten ERISA plan 878 879 Is plan representation enforceable? 880 - is the plan funded (bag of employer money) or unfunded (pay at year's end)? 881 - MAJ RULE - estoppel does not apply to funded plans - policy concern for actuarial soundness 882 - yes, if a plausible interpretation of the plan and not a modification 883 - no, if a modification - cannot modify policy by estoppel 884 - unless written - written reps can modify; oral reps cannot modify 885 886 RULE - estoppel elements: 887 [1] party must make a definite representation of fact to another person having reason to believe that the other will rely on it 888 [2] complaining party must rely reasonably on the misrepresentation 889 [3] complaining party suffered detriment (position worsened) 890 [4] complaining party had no knowledge or convenient means of ascertaining true facts 891 892 RULE - waiver elements: 893 - waiving party has received consideration for the waiver 894 - OR that the non-waiving party has acted in reasonable reliance upon the apparent waiver 895 ALT RULE - especially in insurance context, can find implied waiver without any detrimental reliance or exchange of consideration 896 897 RULE - ERISA does not preempt claims by third parties who sue not as assignees but as independent entities seeking damages 898 - because such claims do not "relate to" the administration of an ERISA plan 899 900 POLICY - purpose of estoppel: 901 - prevent detriment to relying party 902 - prevent UE to representing party 903 904 POLICY - arguments of [1] lack of meaningful choice or [2] unequal bargaining power prove too much - they are almost alway applicable 905 906 POLICY - effect of the ERISA cases is to remove the remedy for betrayal 907 - RULE - ERISA preempts state CL causes of action 908 - if the state law claims address areas of exclusive Federal concern 909 - if the state law claims directly affect the relationship among the ERISA entities - employer, plan, fiduciaries, participants, beneficiaries 910 - does NOT preempt state law claims that are not premised on a violation of duties imposed by ERISA 911 - ERISA need not always provide a substitute Federal remedy for the claims it preempts 912 - POLICY - goal of ERISA is to protect interests of employees and their beneficiaries 913 914 ৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶৶

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