TEXAS BAR - MAJOR TOPICS

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jpbehnke
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TEXAS BAR - MAJOR TOPICS
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2013-07-23 09:35:50
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Major topics covered on the Texas Bar.
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  1. Requirements of Negotiable Instruments
    • (1) Signed writing
    • (2) Unconditional promise/order
    • (3) To pay fixed amount
    • (4) Payable to order/bearer
    • (5) On demand
    • (6) W/ no undertakings/instructions
  2. HDC
    • Good faith purchaser of an instrument (like a BFP)
    • (1) For value
    • (2) In good faith
    • (3) W/o notice it's overdue/dishonored
    • (4) W/o notice of unauthorized signature/alteration
    • (5) W/o notice of any defenses against claim
  3. Transfer Warranties for Negotiable Instruments
    • (1) Transferor is entitled to enforce instrument
    • (2) All sigs are authentic and authorized
    • (3) No alterations
    • (4) Not subj. to defense
    • (5) No knowledge of any insolvency proceeding against maker
  4. Presentment Warranties for Negotiable Instruments
    • (1) Warrantor could enforce draft at time of transfer
    • (2) No alterations
    • (3) No knowledge that signature of drawer is unauthorized
  5. HDC Defenses (Real Defenses)
    • (1) Infancy, lack of legal capacity
    • (2) Duress
    • (3) Fraud
    • (4) Illegality
    • (4) Discharge in insolvency

    IDFID
  6. Mandatory Certificate Provisions for Entity Formation
    • (1) Name of corp. (co.! llc! llp!)
    • (2) Purpose
    • (3) Duration
    • (4) Address of registered office
    • (5) Name of registered agent
    • (6) Name/address of each organizer
    • (7) Stock info (kind, authorized shares)
    • (8) # of directors (if managed directors)
    • (9) Name/address of directors
  7. Optional Certificate Provisions for Entity Formation
    • (1) Transfer restrictions on shares
    • (2) Allowance of preemptive rights
    • (3) Allowance of cumulative voting
  8. Shareholder Rights
    • 1. Elect/remove directors
    • 2. Amend bylaws
    • 3. Approve fundamental changes
  9. Duty of Loyalty of Directors/Officers
    • 1. Self-dealing with corp. must be approved
    • 2. No usurping corp. opportunities
    • 3. No competing w/ corp.
  10. Rule 10b-5
    No false/misleading statements in connection w/ purchase/sale of securities

    • Elements:
    • 1. Misrep. of material fact
    • 2. Scienter/reckless as to truth
    • 3. Causation
    • 4. Reliance
    • 5. Damages
  11. Requirements for Will Validity
    • 1. Capacity
    • 2. Intent
    • 3. Formation
  12. Testamentary Capacity
    • 18 (unless marries/armed forces);
    • Of sound mind
  13. Sound Mind for Testamentary Capacity
    • 1. Persons the subject of his bounty 
    • 2. Understands nature/extent of property
    • 3. Nature of document (testamentary instrument that distributes property at death)

    PUN
  14. Undue Influence upon Testator
    • 1. Influence existed
    • 2. Subverted Testator's mind
    • 3. No will would have been made w/o the influence
  15. Witnessed Will Formalities
    • 1. Two competent witnesses
    • 2. Signed somewhere on doc by Testator
  16. Holographic Will Formalities
    • 1. Material provisions are handwritten by testator
    • 2. Signed somewhere on document
  17. Types of Testamentary Distributions
    • 1. Specific
    • 2. Demonstrative (100,000 from sale of house)
    • 3. General (100,000 from estate)
    • 4. Residuary
    • 5. Intestate

    [FOR DEBTS: Go reverse order, personal then real]
  18. Accommodation Doctrine
    • 1. Use will substantially impair Existing surface use
    • 2. MIO has ≥1 Reasonable alternative available
    • 3. Alternatives are on leased tract

    ERA
  19. Matter of Law Surface Minerals
    • 1. Gravel
    • 2. Water
    • 3. Building stone
    • 4. Limestone
    • 5. Iron
    • 6. Near surface lignite
    • 7. Caliche
    • 8. Surface shale
    • 9. Sand

    GW BLINCSS

  20. Surface Destruction Test
    • - Pre-June 8, 1983:
    • - Any method to get minerals that will destroy surface? Belongs to landowner (down to 200 ft.)
  21. Ordinary and Natural Meaning test
    - Substance a mineral w/in the ordinary and natural meaning of the word? Yes; goes to MIO (WITH accommodation doctrine AND compensation when getting “other minerals”; only compensate for named minerals if negligent)
  22. Production Costs for O&G Leases
    • 1. Labor and repair
    • 2. Administrative expenses (related to lease at hand)
    • 3. Royalty to landowner
    • 4. Pumping expenses

    LARP
  23. Implied Covenants for O&G MIO
    • 1. Protect against drainage
    • 2. Reasonably develop
    • 3. Manage and administer the lease (get best price)
  24. Reasonable Expectation of Privacy
    • 1. Subjective: ∆ shows he expected privacy
    • 2. Objective: Society expects privacy for act/place in question
  25. Warrant Requirement
    • 1. Signed by neutral/detached magistrate
    • 2. Probable cause
    • 3. Describe person/thing/place to be searched w/ particularity
  26. Specific Intent (SI) Crimes: BAFFLE PACK
    • 1. Burglary
    • 2. Assault
    • 3. False pretenses
    • 4. Forgery
    • 5. Larceny
    • 6. Embezzlement
    • 7. Premeditated murder
    • 8. Conspiracy/Solicitation
    • 9. Kidnapping for Ransom
  27. Murder
    • (SI)
    • 1. Unlawful killing of another w/ malice
    • 2. Actus reas
    • 3. Kill person other than yourself
  28. Malice Types (in regard to Murder)
    • 1. Purpose/intent
    • 2. Knowledge conduct would cause death
    • 3. Intent to inflict grievous harm w/o intent to kill
  29. Depraved Heart Murder
    • 1. D causes death of another
    • 2. As result of extreme risk
    • 3. That manifests wanton disregard for human life (reckless/gross neg. conduct creating extreme risk)
  30. Felony Murder
    • 1. Unintentional killing
    • 2. Proximately caused (must be foreseeable)
    • 3. During commission/attempt
    • 4. Of a serious/inherently dangerous felony
  31. Inherently Dangerous Felonies
    • 1. Burglary
    • 2. Arson
    • 3. Rape
    • 4. Robbery
    • 5. Kidnapping

    BARRK
  32. Voluntary Manslaughter
    • 1. Intentional killing
    • 2. w/ adequate provocation
    • 3. Lacking justification
  33. Involuntary Manslaughter
    • 1. Unintentional killing
    • 2. Unjustifiable risk not extreme enough to rise to implied malice
  34. Criminal Battery
    • (GI)
    • 1. Intentional/reckless/criminally negligent
    • 2. Unlawful application of force to victim
  35. Criminal Assault
    Incomplete battery
  36. Mayhem
    • 1. Intent to maim or do bodily injury
    • 2. Act that dismembered/disabled bodypart useful for fighting
  37. Kidnapping
    • 1. Force; to achieve
    • 2. Unlawful Restraint; that makes victim
    • 3. Leave the area (moving victim)

    FURL
  38. Rape
    • 1. Carnal knowledge (pentration)
    • 2. Of a woman (not needed)
    • 3. Not the wife of the accused (not needed)
    • 4. Against her will (his will, too)

    Force: Look to objective ev. of lack of consent
  39. Bigamy
    • (GI)
    • Marry more than one person; strict liability
  40. Larceny
    • (SI)
    • 1. Trespassory taking
    • 2. Carrying away property of another
    • 3. With intent to permanently deprive
  41. Embezzlement
    • (SI)
    • 1. Unlawful conversion; of the
    • 2. Personal property of another; 
    • 3. Already in lawful possession
  42. Robbery
    • (SI)
    • 1. Larceny
    • 2. From person/presence of victim
    • 3. With force (needs actual fear)
  43. Larceny by Trick
    • (SI)
    • 1. ∆ gets possession but not title
    • 2. By means of misrepresentation
    • 3. He knows is false
  44. False pretenses
    • (SI)
    • 1. False representation;
    • 2. ∆ knows is false;
    • 3. Causes victim to pass title to ∆;
    • 4. ∆ Intends to defraud
  45. Extortion
    • (SI)
    • [Blackmail]
    • 1. Obtaining property of another
    • 2. By use of threat of future harm to victim or his property
  46. Receiving Stolen Property
    • (SI)
    • 1. Receiving stolen property
    • 2. W/ knowledge it's stolen
    • 3. W/ intent to permanently deprive
  47. Forgery
    • (SI)
    • 1. Fraudulent making of false writing
    • 2. W/ apparent legal significance; and
    • 3. Intent to make wrongful use of document
  48. Burglary
    • (SI)
    • 1. Breaking and entering (including by fraud/deception)
    • 2. Dwelling house (modern: any structure) of another; with
    • 3. Intent to commit a felony therein
  49. Arson
    • (GI)
    • 1. Malicious act
    • 2. That creates considerable risk; of
    • 3. The burning of the dwelling of another (modern: doesn't have to be dwelling)
  50. Solicitation
    • (GI)
    • 1. Encouraging another to commit an offense
    • [Completed when solicitation is made; cannot w/draw]
  51. Conspiracy
    • (GI)
    • 1. Agreement between ≥2 persons; with
    • 2. Intent to agree to commit the unlawful act;
    • 3. Modern: Overt act toward the end of the conspiracy
  52. Attempt
    • (SI)
    • 1. Intent to bring about a criminal result
    • 2. Significant overt act in furtherance thereof
  53. Requirements for Valid Trust
    • 1. Ascertainable beneficiaries
    • 2. Mechanics
    • 3. Proper purpose
    • 4. Intent
    • 5. IDable corpus

    AMP II (Amp 2)
  54. Trusttee Powers
    • [Look to instrument first]
    • 1. Resignation (w/ ct. permission)
    • 2. Co-trustees (majority acts)
    • 3. Delegation (nope)
    • 4. Sell
    • 5. Invest
    • 6. Apportionment
    • 7. Invade principal
  55. Trustee's Duties
    • 1. Make property productive (reasonably prudent investor)
    • 2. Account
    • 3. Defend
    • 4. Collect/preserve/segregate trust property
    • 5. Reasonably care and skill
    • 6. Loyalty and good faith

    MAD CaRL
  56. Guardian Requirements
    • 1. Adult
    • 2. Competent
    • 3. Good character
    • 4. Not indebted or in lawsuit w/ ward
  57. Guardians of Minors
    • 1. Parents living together: Both natural guardiance: agree who is guardian of estate (if can't agree, ct. chooses)
    • 2. One deceased parent: Survivor is natural and estate guardian (if incapacitated, ct. must appoint person in will unless not in ward's interest)
  58. Guardians of Adults (first choice to last choice)
    • 1. Designee
    • 2. Spouse
    • 3. Nearest relative in best interest of guardian
  59. Duties of Guardian
    • 1. Fiduciary
    • 2. Of the person: Duty of care: Must provide food, shelter, and medical needs
    • 3. Of the estate: Duty to manage estate as a reasonable person and prudent person would
  60. Batter (Tort)
    • (IT)
    • 1. Intend;
    • 2. To cause harmful/offensive contact
  61. Assault (Tort)
    • (IT)
    • 1. Intent
    • 2. To put π in reasonable apprehension (must be aware)
    • 3. Of an imminent battery
  62. False Imprisonment
    • (IT)
    • 1. Intent/recklessness
    • 2. To confine π to a bounded area
    • 3. Against π's will
    • 4. π knows of confinement/injured thereby (regardless of knowledge)
  63. IIED
    • (IT)
    • 1. Intent/recklessness
    • 2. Extreme/outrageous conduct
    • 3. Causation
    • 4. Severe emotional distress

    For 3d parties: Must have close relation to victim and ∆ must know you're watching
  64. Trespass to Land
    • (IT)
    • 1. Intent
    • 2. Enter/cause something to enter
    • 3. π's land
  65. Trespass to Chattels
    • (IT)
    • 1. Intent (to do the act, not necessarily to steal)
    • 2. Interfere's w/ π's enjoyment
    • 3. Of π's chattel
    • 4. Harm to chattel
  66. Conversion
    • (IT)
    • 1. Intent
    • 2. Dominion and Control
    • 3. Substantial interference
  67. Defenses to Intentional Torts (IT)
    POPCANS

    • 1. Defense of Property
    • 2. Defense of Others
    • 3. Privilege
    • 4. Consent
    • 5. Assumption of risk
    • 6. Necessity
    • 7. Self-defense
  68. Negligence
    • 1. Duty
    • 2. Breach
    • 3. Causation (but-for and proximate)
  69. NIED
    • 1. ∆ engaged in negligent conduct
    • 2. π suffers physical manifestations of ED
    • 3. [Was in zone of danger]
  70. Wrongful Conception
    Healthy but unwanted child due to ∆'s negligence
  71. Wrongful birth
    • 1. Birth of child who isn't healthy
    • 2. Doc. didn't diagnose kid w/ disorder so parents couldn't abort
  72. Wrongful life
    Injury is being born; courts don't really allow this
  73. Status on Others' Land
    • 1. Invitee: Open to public; gaining economic benefit
    • 2. Licensee: Consent to be on land; no economic benefit
    • 3. Known trespasser
    • 4. Unknown trespasser
  74. Duty to Invitees
    Seek out dangers; warn of known dangers
  75. Duty to Licensee
    Warn of known, concealed dangers
  76. Duty to Known Trespasser
    Warn of known artificial conditions on land
  77. Duty to Unknown Trespasser
    None
  78. Res Ipsa
    • 1. Thing doesn't happen w/o neg.
    • 2. ∆ has control over harm-causing instrumentality
    • 3. π didn't contribute to occurrence
  79. Neg. per se
    • 1. π in class statute was designed to protect
    • 2. Statute designed to protect against harm suffered by π
  80. Agency
    • 1. Mutual consent
    • 2. That one acts for the benefit of another
    • 3. Subject to the other's control
  81. Vicarious Liability
    • 1. Actor is Servant
    • 2. Act occurred in scope of employment
  82. Scope of Employment
    • 1. Act of general nature as that authorized
    • 2. Conduct subject to employer's control
    • 3. W/in range of normal or expected risks of business
  83. Types of Authority
    • 1. Actual
    •     - Implied actual
    • 2. Apparent (look to principal's representations to 3d party)
    • 3. Estoppel
  84. Partner Duties
    • 1. Care
    • 2. Loyalty
    • 3. Good faith and fair dealing
  85. Paying Debts on Winding Up
    • 1. Creditors (look for Deep Rock)
    • 2. Partners/s'holders
  86. Events Requiring P'ship Winding Up:
    • 1. Term over
    • 2. Undertaking complete
    • 3. Unanimous consent by all partners if during term
    • 4. Majority consent if at will p'ship
    • 5. P'ship purpose becomes illegal
  87. Types of Goods
    • 1. Consumer
    • 2. Inventory
    • 3. Farm products
    • 4. Equipment
    • 5. Fixtures
    • 6. Accessions
    • 7. Commingled
  88. Types of Intangibles
    • 1. Tangible intangibles (reduced to paper, the transfer of which results in transfer of intangible)
    • 2. Intangible intangibles
  89. Security Agreement Requirements
    • 1. "Granting" language
    • 2. Description of collateral
    • 3. Authentication
  90. Attachment
    • 1. Rights to collateral
    • 2. Agreement
    • 3. Value given
    • 4. Evidence of agreement

    RAVE
  91. Perfection Requirements
    • 1. Attachment; and
    • 2. Filing/possession/control
  92. Financing Statement Requirements
    • 1. Debtor/SP names
    • 2. Collateral description (supergeneric OK)
    • (Requires authorization, too, but the security agreement is usually the authorization for the financing statement, too)
  93. Fixtures: Requirements for Perfection
    • 1. Proper financing statement
    • 2. Indication it covers fixtures
    • 3. Filed in real property records of country
    • 4. Further describes real property
  94. Priorities conflicts
    • 1. 2 unperf: first to attach
    • 2. Perf v. Unperf: Perfected
    • 3. Perf v. Perf: First to file or perfect
    • 4. PMSIs prime all
    • 5. Perf v. Lien creditor: Lien creditor primes if it has lien first; loses to PMSI
  95. Exception to SI remaining in sold goods
    • 1. BIOCOB
    • 2. Garage sale rule
  96. BIOCOB exception
    • SP no longer has SI in inventory (buyer takes free) when:
    • 1. Buyer purchases in good faith
    • 2. W/o knowledge of violating the rights of another
    • 3. In the OCoB of selling goods of that kind
  97. Garage sale exceptions
    • 1. Seller used good as consumer good
    • 2. Buyer will use good as consumer good
    • 3. Buyer pays value
    • 4. W/o knowledge of SI
    • 5. Before FS is filed
  98. Notice Requirements for Selling Defaulted SI
    • 1. Debtor/SP description
    • 2. Collateral description
    • 3. Method of disposition
    • 4. Statement debtor can get accounting
    • 5. Time/place of disposition
    • 6. Time after which collateral will be sold
    • [For consumer goods]
    • 7. Description of liability for deficiency; and
    • 8. Phone number debtor can call to get amt. reqiured to redeem
  99. Automatic Stay Prevents
    • 1. Lawsuits
    • 2. Enforcement of jgmts by seizing assets
    • 3. Acts to obtain prop. of estate
    • 4. Acts to create, perfect, or make liens against prop. of estate or debtor
    • 5. Acts to recover claim (no calls, letters, etc.)
    • [Exceptions]
    • 1. Criminal and domestic actions are allowed
    • 2. Gov't acts to enforce police/reg powers
    • 3. Acts done to perfect prop. w/in applicable grace period (e.g., 20 days) or maintain perfection
  100. Discharge from Bankruptcy won't cover
    • 1. Back taxes
    • 2. Debt of obtained by fraud (imputed if bought luxury good >$550 and files w/in 90 days)
    • 3. Extension of consumer credit w/in 70 days of bankruptchy if >$825
    • 4. Debts incurred while acting as a fiduciary
    • 5. Not listing debts in time to allow creditors to make claim
    • 6. Debts for domestic support
    • 7. Debts from tort commission
    • 8. Student loans
  101. Homestead Exemptions
    • 1. Urban: ≤10 acres
    • 2. Rural: [Single] ≤100 acres; [Family] ≤200 acres
    • 3. Personal property (like home furnishings, two guns, farming vehicles, etc.) worth up to $30K [single]/$60K [family]
  102. Types of Waste in Real Property
    • 1. Voluntary
    • 2. Permissive
    • 3. Ameliorative
  103. Types of Restraints on Alienation
    • 1. Total (Fee: Not valid; <Fee: Okay if reasonable)
    • 2. Partial (Valid if reasonable)
  104. Statute of Frauds
    • 1. Marriage
    • 2. Year (one)
    • 3. Land
    • 4. Executor (Dead Man's statute)
    • 5. Guarantor/Surety
    • 6. Sale of Goods >$500
  105. RAPplcation
    • 1. Contingent remainder/Class gifts
    • 2. Offers to purchase (fee options)
    • 3. Powers of Appointment
    • 4. Executory interests
    • 5. Right of first refusal
  106. RAP approach
    • 1. RAP applies? COPER
    • 2. Some way someone can claim interest >21 years after everyone currently alive is dead?
    • Yes: Strike future interest
    • No: Interest will stand
  107. TiC Creation
    • 1. No special words needed
    • 2. One unity: Possession
  108. JT Creation
    • 1. Time
    • 2. Title
    • 3. Interest
    • 4. Possession

    TTIP

    [Gives survivorship rights; title theory of mortgages and inter vivos transfers severs to TiC]
  109. Tenancy by the Entirety
    • TTIP
    • (5) Unity of Person (spouse can unilaterally do something w/o consent of spouse)
  110. Rights/Duties of Co-Tenants (co-T)
    • 1. Profits produced by one co-T's efforts: No sharing needed unless ousted
    • 2. Profits produced by 3d party on prop: All co-T's entitled to equal shares
    • 3. Taxes: Each co-T must pay his proportionate share
    • 4. Repair [Maj.]: NONE, but can get set off from 3d party rents
    • 5. Repair [TEX]: Co-T can get contribution jointly-owned property
    • 6. Improvements: No duty; if prop. sold, improving co-T gets amt. attributed to how muc improvement increased value
  111. Adverse Possession
    • 1. Adverse
    • 2. Hostile
    • 3. Open and Notorious
    • 4. Exclusive
    • 5. Continuously for the statutory period

    AHONEC
  112. Texas AP Statutory Period
    • 1. 3: Color of title
    • 2. 5: Cultivating/using/enjoying property under deed and pays taxes
    • 3. 10: Cultivates/uses/enjoys prop.
    • 4. 25: De facto AP, even if tolled because of infancy or disability
  113. SoF exception: Part performance requirements
    • 1. Payment of all/part of purchase price
    • 2. In possession
    • 3. Made substantial improvements to land
  114. Marketable Title Defects
    • 1. Mortgage
    • 2. Easement/Covenant
    • 3. Title of AP until quieted title
    • 4. Existing conditions that violate zoning

    METEs and bounds
  115. Covenants of Title
    • [Present; don't run with land; SoL tolls at closing]
    • 1. Seisin: Grantor promises he owns prop.
    • 2. Right to Convey: Grantor promises he can convey
    • 3. Against encumbrances: No undisclosed encumbrances
    • [Future; run w/ land; SoL tolls after being evicted by 3d party]
    • 4. Quiet enjoyment: No 3d party will assert valid superior claim
    • 5. Warranty: Grantor will defend against valid 3d party claim
    • 6. Further assurances: Grantor will do what's needed to perfect title
  116. Requirements of Valid Deed
    • 1. Description of property
    • 2. Intent to make present transfer
    • 3. Party identification
    • 4. Signature of grantor

    DIPS
  117. Valid Deed Delivery
    • 1. Grantor has intent to transfer prop.
    • 2. Either:
    • - Gives deed to grantee (rebut. presump. of delivery
    • - Retains it (rebut. presump. of non-delivery)
    • - Gives to agent (3d party) in escrow; agent gives deed to grantee eventually
  118. Recording Types
    • 1. Race: First to record
    • 2. Notice: TEXAS: BFP w/o notice of prior interest (actual, constructive, or inquiry notice)
    • 3. Race-Notice: BFP recording before prior interest
  119. Mortgage Theories
    • 1. Lien theory
    • 2. Title theory (severs JTs)
  120. Mortgage Transfer Types
    • 1. Subject to 
    • 2. Assumption
  121. Types of Easements
    • 1. Express
    • 2. Prescriptive (TEXAS: 10 years of AP)
    • 3. Implied (land came from common ownership)
    • 4. Necessity (land came from common ownership)
    • 5. Estoppel
    • 6. Public use
  122. Real Covenant Requirement
    • 1. Privity
    • 2. Intent
    • 3. Notice
    • 4. Touches and concerns land

    PINT
  123. Equitable Servitude
    • 1. Touches and concerns land
    • 2. Intent
    • 3. Notice
  124. Implied Reciprocal Servitude Requirements
    • 1. Negative restriction
    • 2. Part of common plan or scheme
    • 3. Current servient estate owner must take estate w/o some notice of restriction
  125. Nuisance
    Unreasonable interference w/ someone else's enjoyment of their land (modern: coming to nuisance is only factor in whether nuisance is actionable)
  126. Support Rights
    • 1. Lateral: Absolute right to support unimproved land; if land would have subsided w/o developments, strict liability; if not, negligence)
    • 2. Subjacent: Absolute; strict liability

    REMEMBER: Mineral estate is dominant
  127. Type of Tenancies
    • 1. Years (definite beginning and end)
    • 2. Periodic (set beginning; continues till termination; notice = 1 rental period of time, not to exceed 6 mos)
    • 3. At will (over when either party decides; no notice)
    • 4. Sufferance (doesn't move out at end)
  128. LL requirements to deliver rental property
    • 1. American: Just access; new tenant in charge of evicting holdovers
    • 2. English: Must deliver possession (TEXAS)
  129. Constructive Eviction
    • 1. Substantial interference w/ use and enjoyment of prop.
    • 2. Tenant actually leaves
    • 3. W/in reasonable time

    [Results in defense of payment of all rent or abatement (for interfering w/ only a part of the land]
  130. LL warranties
    1. Habitability: LL must keep premises habitable
  131. Tenant Duties in LL/Tenant
    1. Avoid waste
  132. Tenant Transfer of LL's property
    • 1. Assignment: Tenant gives all his rights; creates privity of estate w/ LL
    • 2. Sublease: Tenant gives some rights; no privity of estate w/ LL

    [Restrictions are allowed, but narrowly construed; Dumpor's Case says that if LL impliedly/explicitly waives restriction, it's waived until LL resurrects]
  133. Insanity Burden: Federal
    C&C
  134. Insanity Burden: State
    • Split:
    • MPC: Preponderance;
    • State must prove sanity beyond a reasonable doubt
  135. Fixture: Defined
    • Attached to real estate;
    • Adapted to the use of the real estate; and
    • Intended to be a permanent attachment to the real estate
  136. Conflicting dates between typed and handwritten dates on a negotiable instrument; is date still ascertainable?
    Yes. The TX UCC states that the date for calculating the demand period is the handwritten date.
  137. Doctrine of Avoidable Consequences
    • Tort theory;
    • Taking all reasonable steps to limit the adverse consequences of an accident;
    • Must occur after the tort, failure to do so before the tort = comparative negligence
  138. Under the Statute of Frauds, a contract to sell goods priced at $500 or more must be in writing. However, an oral contract for such sale is enforceable to the extent that . . .
    The goods have been received and accepted.
  139. SoF Exception: If goods are of special manufacture and not suitable for resale in the ordinary course of the seller's business, and _______________________________________ an oral contract for such goods will be enforced.
    the seller has made a substantial beginning in their manufacture
  140. Duty to Invitee: Is delegation of maintenance and upkeep of facilities to an IC allowed?
    Yes, but the *responsibility* for the IC's negligence in upkeep cannot be delegated.

    E.g., Mall gets IC to upkeep carousel. IC doesn't put a cover back in place. Girl falls and her arm enters gearbox that should have been covered. Mall is responsible for IC's negligence.
  141. Is strict liability available for real estate?
    Yes, against sellers of mass-manufactured new homes (but there's a split as to whether the entity to which they convey the home, who then conveys to a consumer, is liable, too).
  142. Intrusion upon seclusion
    • A form of invasion of privacy that occurs when: ∆ unreasonably intrudes into a
    • π's right to physical solitude; or
    • to the π privacy of personal affairs or concerns.
  143. Filing not effective to perfect:
    • Deposit acct (control)
    • Letter-of-credit right (control)
    • Money (possession only)
  144. Are PMSI's available for consumer goods that are subject to a certificate of title statute?
    No.
  145. Are PMSI's available for consumer goods that become fixtures?
    Nope.
  146. Order of Collection on Defaulted SI debt
    • Reasonable expenses of collection and enforcement;
    • Satisfaction of SP;
    • Satisfaction of subordinate SPs;
    • Surplus to debtor––deficiency against debtor
  147. UCC Statute of Frauds: Writing requirement
    • indicates a contract for the sale of goods has been formed,
    • identifies the parties, and
    • indicates the quantity of goods involved.
  148. Associational Standing
    • Members of association would have standing;
    • The suit is germane to the purpose of the association; and
    • The participation of members in the suit is not required
  149. A hires B to install 4 cabinets for $4000. B installs 3 cabinets. A sends B a check for $3000, conspicuously writing "payment in full." B cashes check. Accord and satisfaction?
    Yep.

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