Pa Distinction

Card Set Information

Pa Distinction
2010-06-18 14:29:08
Pa Bar

Show Answers:

  1. Noncompete Clauses
    generally enforceable UNLESS create unreasonable restraint on trade.

    Need reasonable duration and geographic scope.
  2. Promissory Estoppel or Detrimental Reliance
    • Inducement
    • justifiable reliance
    • promisor reasonably expected to induce action or forebearance.
  3. Promise under Seal
    Seal counts as a substitute for considearation in the absence of fraud.

  4. Fraudulent misrepresentation
    • -false representation of material fact
    • -made with knowledge of its falsity or with reckless disregard of its truth or falsity
    • -by the person charge with having knowled gof the fact
    • -who intended that the recipient would act on the facts
    • -misled recipient causing harm
  5. Duress and coercion
    • contract is voidable. Court will consider:
    • - existed pressure or circumstances that injured party was commpelled to involuntarily or agaisnt her will execute an agreement resulting in an economic loss
    • - injured party has immediate legal remedy to make whoel without voiding the contract.
  6. Statute of Frauds:
    • -contracts for the sale of goods for $500 or more
    • -executors' and suretys' contracts
    • -transfers of real property
    • -lease contracts for more than 3 years or $1000 or more in consideration
    • NOT APPLY:
    • - consideration less tahn $20
    • - contracts to die intestate or make or revoke a will (other statutes require writing)
  7. Unconscionability
    • -signing party must have lacked a meaningful choice in accepting hte challenged contract or clause
    • -the challenged contract or clause must "unreasonably favor" thje party asserting it.

    • RESULT:
    • -refuse to enforce the cotnract or clause
    • -enforce remainder of contract without the unconscionable clause
    • -limit aplpication of the unconscionable caluse
  8. Exculpatory clause
    striclty construed agasint the party seeking its protection

    • -clause must not contravene public policy
    • -contract must be betweeen persons relating entirely to their own private affairs
    • each party must be a free bargaining agent to the agreement so the contract is not one of adhesion.
  9. Article 2 Warranties: to whom do they extend?
    Any natural person who is int he family or household of hte buyer or is a guest in the home where the personal injury is.
  10. Consequential Damages
    Special damages may be awarded for failure to acheive purpose of hte contract or from unsual circumstances where it was known to the other party.

    No emotional distress damages EXCEPT if wonton or reckless AND caused bodily harm
  11. Liquidated Damages
    must be reasonable and there must have been difficulty in assessing the harm that woudl be caused by thte breach
  12. Third party beneficiaries: intended vs. incidental beneficiary test:
    • -recognition of beneficiary's right is appropriate to effecutate the intetion of hte parties AND
    • -performance satisfies an obligation of the promisee to pay money to the beneficiary OR circumstances indicate that the promisee intended to give the beneficiary the benefot of the promised performance.
  13. Third pary beneficiaries: when do rights vest?
    rights vest immediately

    • MBE rule:
  14. Criminal law merger
    • Rule is abolish murder EXCEPT FOR:
    • -lesser included offenses
    • -attempt and completed offenses
  15. Criminal mental states
    • Intentional involves:
    • -nature of conduct or result is the conscious object
    • -attendant circumstances, and he is aware of the existence of such circumstances OR he believes or hopes that they exist

    • Knowingly involves:
    • -nature of his conduct or attendant circumstances, and is aware taht his conduct is of the nature that such circumstances exist
    • -a reult of his conduct and her is aware that it is practically certain the conduct will cause a result

    • Recklessly:
    • -there is a conscious disregard that creates a substantial and unjustifiable risk that a material element will exist or will result from his. The disregard involves a gross deviation fromt he standard conduct that a reasonable person would observe in the actor's situation

    • Negligently:
    • -should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.
  16. Vicarious laibility offenses (criminal)
    a person is vicariously liable for own conduct or taht of another which he is legally accountable.

    • Legally accountable if:
    • -acting with kind of culpability that is sufficient for hte commission of the offense, he causes an innocent or irresponsible person to engage in such conduct
    • -he is made accountable for the conduct of such other person by statute or law defining the offense OR
    • -is an accomplice of such other person in the commission of the offense.
  17. Conspiracy (criminal)
    NO MERGER between conspiracy and completed crime

    • Elements:
    • -agress with another person that one or more will engage in conduct that constitutes the crime or an attempt or solicitation to commit the crime OR
    • -agress to aid another person in the planning or commission of the crime or attempt or solicitation.

    Not convicted unless commit OVERT ACTS, HOWEVER not relieved if not physically present which crime was committed.

    May RENUNCIATE as a defense is thwared the success of the conspiracy.
  18. Insanity (criminal)
    M'Naghten Rule places burden on defedant to prove insanity by a preponderance of hte evidence.

    No irresistible impulse defense except heat of passion reducing murder to manslaughter.

    Guilty but mentally ill verdict allowable if not "insanity"
  19. Voluntary intoxication (criminal)
    not a defense EXCEPT first degree murder to third degree.
  20. Retreat from using deadly force (criminal)
    • Not justified if:
    • - actor knows he can avoid the use of deadly force with complete safety of retreating, by surrendering possession or by complying wiht a demand that he abstain from any action that he has no duty to take OR
    • -actor provoked the use of force agaisnt himself in the same encounter with the intent of cuasing death or serious bodily harm.

    No duty in own dwelling or place of work unless actor instigated or is assailed by other person whole work the actor knows it to be.
  21. Defense to others (criminal)
    • -actor would be justified in using force to protect himself against injury believes to be threatedned to the perons
    • -under circumstances actor believes the person would be justified in using such force
    • -the actor believes intervention is necessary for protection of another person.
  22. Resisting arrest (criminal)
    • -intent to prevent an arrest,
    • -creates risk of substantial bodily injury to public servant or anyone else OR requires substantial force to overcome the resistance.
    • -lawful arrest with authority and probable cause.

    • Cannot resist arrest by a police officer unless the officer uses or threatens to use deadly force
  23. Assault
    battery is called assault in PA

    • -attempting to cause or inteiontally, knowingly, or recklessly cause bodily injury to another
    • -negligently causing bodily injury to another using deadly weapon
    • attemp
  24. Murder
    • 1st degree: intentional killing
    • 2nd degree: defendant was engaged as principal or an accomplice in the perpetration of a felony
    • 3rd degree: killing done by malice, express or implied, but without the specific intent to kill
    • voluntary manslaughter: killing of another without lawful justification under sudden and intense passion resulting from serious provocation by:
    • -the individual killed OR
    • -another whom the actor endeavors to kill, but instead negligently or accidnetally causes the death of another killed.
    • involuntary manslaughter: causes the death of another as a direct result of reckless or grossly negligent act whether lawful or not.
    • homicide by vehicle:
  25. Homicide by Vehicle
    • recklessly or with gross negligence causes the death of another person
    • while violating any state or municipal law regarding the operation or
    • use of a vehicle AND the violation causes a deadh
  26. False imprisonment (criminal)
    Knowingly restrain another unlawfully so as to substantiall yinterfere with his liberty.

    Felony if victim under 18.
  27. Wrongful Civil Proceedings (Tort)
    • -underlying proceedings were terminated in her favor
    • -defednat here initiated those proceedigns without probable cause or acted in a grossly negligent manner
    • -defendant here filed the orginal action for an improper purpose AND
    • -plaintiff here sustained damages as a resutl.
  28. Good Samaritan Statute (Tort)
    Protect medical personnel for rendering emergency care or rescue and volunteers without compensation rendering serices.

    Must be grossly negligent before Plaintiff can recover.
  29. Partial comparative negligence
    Plaintiff can recover if has 50% or less responsibility.