403 FN

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tuchiyama10
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273187
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403 FN
Updated:
2014-05-10 18:32:27
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wao such study
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  1. 3 times when express warrantiesが起こる
    • 1. affirmation of fact or promise about the goods
    • 2. a description of the goods
    • 3. a model or sample of the goods
  2. damages recoverable in express warranty
    compensatory damages for difference in value
  3. implied warranty of merchantability
    • only against merchants who buy/sell that kind of good
    • only one party has to be the merchant
  4. 3 requirements of implied warranty of merchantability
    • 1. fit for the ordinary purpose they are used
    • 2. adequately contained, packaged, and labeled
    • 3. even kind, quality consistent in the trade
  5. 2 tests for fitness for human consumption
    • 1. foreign substance test
    • 2. consumer expectation test
  6. implied warranty of fitness for a particular purpose applies where:
    • seller had reason to know the buyer's purpose for using the goods
    • seller makes a statement (which can be implied) that the goods will serve the purpose, AND
    • buyer relies on seller's skill or judgment and purchases the goods (=> think promissory estoppel)
  7. warranty of good title
    • seller has valid title to the goods
    • requires specific language to disclaim
    • => is this stolen?
  8. warranty of no security interests
    • goods are free from third party leverage, liens, etc.
    • requires specific language to disclaim
    • => does the seller owe money on this to someone else?
  9. warranty against infringement
    warranty from a merchant that the goods are free of intellectual property claims
  10. disclaimers (warrants)
    "as is" "with all faults" => disclaims all implied warranties
  11. to disclaim merchantability
    • must state "merchantability"
    • if in writing must be conspicuous (could be oral)
  12. to disclaim fitness for a particular purpose
    • must be in writing
    • must be conspicuous
    • can be in layman's terms
  13. family and medical leave act
    • 12 weeks unpaid time off
    • employee guaranteed a "comparable" position when they get back
    • but only if the employer has >50 employees and the worker has worked at least 1 year and >1250 hours
  14. worker's comp act
    • = compensates workers and their families if workers are injured arising from and in the course of and scope of employment
    • mandatory in all states
    • worker's comp is exclusive remedy except when employer intentionally injures a worker or when you can sue a 3rd party responsible for causing the damage
  15. Fair labor standards act
    • no child labor
    • establishes minimum wage (CA is $8)
    • establishes overtime pay unless an exemption exists
  16. overtime exemptions
    • executive exemption (primary duty is management)
    • administrative exemption (primary duty is office work)
    • professional exemption (work requires advance knowledge in field of science or course of specialized intellectual instruction)
  17. 4 ways to acquire personal property
    • 1. possession or capture (of wild animals)
    • 2. purchase
    • 3. produce (make it)
    • 4. accession
  18. possession or capture (personal property)
    • take possession and have item under your dominion and control
    • => dead squirrel example
  19. accession (personal property)
    • when the value of personal property increases because it was added to or improved by natural or manufactured means
    • natural = belongs to owner (like if your cat had babies, you now own the babies too)
    • wrongful improvements = owner acquires title to improvements and not liable for improvements
    • mistaken improvements = if improvement can be easily separated, improver must remove and pay for damages but if not easily separated, owner can keep at no extra cost
  20. gifts of personal property
    a voluntary transfer of title to property to without consideration
  21. 3 things necessary for gift of personal property
    • 1. intent by donor to give the gift
    • 2. delivery of the gift
    • 3. acceptance
  22. inter vivos gifts
    • gift made when donor alive
    • become irrevocable once completed
  23. causa mortis gifts
    gifts made in contemplation of death are typically revocable IF made in anticipation of impending death and donor dies from the sickness/impending peril without having revoked the gift
  24. mislaid property
    • voluntarily placed somewhere then forgotten
    • owner is entitled to its return
    • owner of premises becomes involuntary bailee of property
    • => i forgot my wallet on the counter at the restaurant
  25. lost property
    • property involuntarily left somewhere
    • finder of property entitled to possession against everyone except true owner
    • must return to true owner
    • if finder loses it, original finder entitled against subsequent finders (still must return to true owner)
    • => my wallet fell out of my pocket
  26. estray statute
    • statute permitting a finder of mislaid or lost property to take title if
    • reported to appropriate gov't agency
    • advertised property found
    • enough time elapses (typically 90 days or so)
  27. abandoned property
    • if an owner intentionally abandons
    • if an owner of mislaid or lost property gives up any attempts to locate it
    • anyone who finds abandoned property acquires title to it (even against true owner)
  28. elements of bailment
    • 1. personal property only
    • 2. delivery of possession (give it to the bailee; must have exclusive control and knowingly accept)
    • 3. bailment agreement (usually oral or implied; unless if for >1yr then in writing)
  29. bailments for the sole benefit of the bailor
    • without consideration (it is a favor) so no money exchanged
    • bailee owes a slight duty of care to protect bailed property 
    • => can you watch my dog?
  30. bailment for mutual benefit
    • most common type
    • involves some form of consideration
    • bailee owes a duty of reasonable care to protect bailed property
  31. bailments for sole benefit of the bailee
    • one person lends an item to the other
    • bailee owes a duty of utmost care to protect the bailed property
    • => can i borrow your car?
  32. bailments: warehouse
    • = a bailee engaged in storing property for compensations
    • owes duty of reasonable care (warehouses only liable for losses due to own negligence; can limit $ amount of liability but bailor must be given opportunity to purchase higher protection)
  33. warehouse receipt
    • describes bailed property and terms of bailment
    • provides warehouse company a lien on goods in possession if warehouse not compensated for storing and handling the goods
  34. bailments: common carrier
    • = offer transportation services to public; creates mutual benefit bailment
    • duty of strict liability (except for act of god, terrorism, act of shipper [bad packaging], etc)
    • may limit liability to stated $ amount but bailor given opportunity to buy more
  35. bill of lading
    • doc of title issued by common carrier when goods are received
    • provides a lien on the goods
  36. bailments: innkeeper (also licensed hospital)
    • = an owner of a facility that provides lodging to the public for compensation
    • strict liability for personal property of guests
    • exceptions - innkeepers' statutes: avoid strict liability by placing a safe in the room and making guests aware of the safe; can limit $ amount of liability if notice is given to guests
  37. tenancy for years
    • leasehold interest lasting for a fixed, determined period of time (i.e. when you know the termination date from the start)
    • automatically terminates at specified end date, no notice required
  38. periodic tenancy
    • = no definite end date
    • tenancy continually renews itself for like periods of time until terminated by one party
    • can be express or implied
    • written notice required for termination, at least equal to length of tenancy period
    • => month-to-month leases
  39. tenancy at will
    • = a tenancy for no fixed period of duration with no express provision for rent
    • can be express or implied
    • may be terminated at any time by either party; death by either party terminates; CA requires 30 day notice
  40. tenancy at sufferance (aka hold-over tenant)
    • when a tenant does not leave after his/her right to occupy is over
    • tenant becomes trespasser; provides lessors ability to collect rent
    • termination either by eviction or creation of a new tenancy term
  41. landlord's 6 duties to a tenant
    • exclusive possession
    • limited right of entry
    • implied covenant of quiet enjoyment
    • duty to maintain leased premises
    • implied warranty of habitability
    • liability for criminal acts of third parties
  42. exclusive possession (landlord and tenant)
    • tenants have exclusive possession until 
    • term of lease expires OR
    • tenant defaults in obligations
  43. limited right of entry (landlord and tenant)
    • reasonable notice of intent to enter must be given in writing
    • notice waived if tenant and landlord agree for purpose of making repairs or supplying services
    • noticed waived in cases of emergency
  44. implied covenant of quiet enjoyment (landlord and tenant)
    tenant will not be evicted or disturbed in his/her possession by landlord or anyone acting with landlord's consent
  45. duty to maintain leased premises (landlord and tenant)
    • landlord must keep premises in repair
    • no duty to make minor repairs (paint, patch, scratched walls, etc)
  46. implied warranty of habitability (landlord and tenant)
    • a leased premises must be fit, safe, and suitable for basic human habitation 
    • remedies: reduce rent to reasonable rental value; repair defect and deduct cost of repairs from rent (up to 1 month's rent); withhold rent; terminate lease
    • in CA violation voids the lease
  47. liability for criminal acts of third parties (landlord and tenant)
    landlord is liable where landlord's conduct was negligent, which led to a criminal act
  48. tenant's duties to landlord
    • pay rent
    • lawful purpose (you can't make a crack house)
    • not to commit waste (not including ordinary wear and tear)
    • duty not to disturb other tenants
  49. tenant assignment
    • when a tenant transfers entire unexpired leasehold interest
    • can do so freely unless lease states otherwise
    • assignee acquires all rights and duties, landlord can enforce against assignee
    • assignor remains liable to landlord if assignee defaults except when landlord agrees to release assignor from all liability (novation)
  50. tenant sublease
    • only transfers a portion of leasehold
    • may freely sublease unless lease agreement says otherwise
    • subtenant becomes tenant to original lease, no rights against landlord (must be enforced through original tenant, then original tenant to landlord)
  51. to be found guilty of a crime you need these 2 things
    • actus reus: criminal act; defendant must have performed the act; may also be that the person omitted to act when there was a legal duty to act
    • mens rea: criminal intent; specific and general intent
  52. civil crime
    • plaintiff: injured party
    • burden of proof: preponderance of the evidence
    • verdict: 3/4 typically
    • remedy: damages
  53. criminal case
    • plaintiff: gov't
    • burden of proof: beyond a reasonable doubt
    • verdict: unanimous almost always
    • remedy: punishment (fine, imprisonment, death)
  54. larceny
    • taking of personal property from another person with intent to permanently deprive; still larceny if you intended to permanently deprive then changed your mind
    • exception: you take property believing it to be your own (but is larceny if you realize and then decide to keep)
  55. robbery
    • taking of personal property from another person by force or threats of force
    • aggravated robbery: use of a deadly weapon (harsher penalty)
  56. receiving stolen property
    it's a crime to knowingly receive stolen property with the intent to permanently deprive the rightful owner of the property
  57. murder
    unlawful killing of a human being, fetus with malice aforethought
  58. malice aforethought
    • intent to kill
    • intent to do serious bodily harm (if someone dies then it is murder, even if you only meant to beat the crap out of them)
    • highly reckless (russian roulette, shooting a gun into a crowded area)
  59. felony murder (BARRK)
    • any death caused during the commission of or intent to commit an inherently dangerous felony
    • Burglary, Arson, Rape, Robbery, Kidnapping
  60. voluntary manslaughter
    • = heat of passion killing
    • it would otherwise be murder but you were adequately provoked and you killed them in the heat of passion
    • provoked from sudden and intense passion where defendant had no "cooling off" period between provocation and killing
  61. involuntary manslaughter
    • killing resulting from criminal negligence, or
    • killing someone while committing a misdemeanor
  62. burglary
    • common law: breaking and entering of a dwelling house (residence) of another at night, with the intent to commit a felony
    • modern law: unlawful entry to a building
    • aggravated burglary: use of deadly weapon
  63. arson
    • common law: malicious burning of the dwelling house of another
    • modern: malicious burning of a building
  64. forgery
    making or altering a writing that affects legal liability so that it is false, with the intent to defraud
  65. embezzlement
    fraudulent conversion of property while in lawful possession of that property (typically money)
  66. bribery
    • attempting to influence a public official by offering anything that the recipient views as valuable
    • offeror: liable at the time the bribe is tendered (doesn't matter if bribe is rejected)
    • offeree: liable if bribe is accepted
  67. extortion aka blackmail
    • obtaining property of another by means of threats to do harm or expose information
    • must be for future harm - not present or imminent harm
    • truth or falsity of information is immaterial
  68. money laundering
    • knowingly engaging in a monetary transaction through a financial institution unlawfully obtained property worth more than 10k, or
    • engaging in a financial transaction to conceal the identity, source, or destination of illegally gained funds
  69. conspiracy
    • agreement between two or more parties to commit a crime
    • requires an over act done to further the crime (e.g. you know your friends want to rob a bank. You think that’s dumb. They ask to borrow
    • your car, then they use your car to rob the bank. You are also liable for that crime. But if someone dies while they commit the crime, you’re also liable for conspiracy and felony murder)
  70. search and seizure
    • people should be free from unreasonable searches and seizures by gov't 
    • there is a search if the defendant had a reasonable expectation of privacy
  71. valid warrantless search
    • item confiscated during arrest
    • where item is seized because it may be destroyed (washing hands of evidence)
    • where there is no expectation of privacy
  72. exclusionary rule (criminal procedure)
    • where evidence obtained is inadmissible
    • all evidence derived from illegally obtained evidence
    • tainted evidence (fruit of the poisonous tree)
    • invalid search and seizure; but admissible against other defendants whose rights were not violated
    • miranda warning: all statements given prior to miranda warning while in custody are inadmissible
  73. prenup in CA
    • no consideration required
    • must be in writing and signed voluntarily by both parties
    • cannot limit or waive child support but can limit or wave spousal support
    • may not promote divorce
    • cannot be unconscionable when made - are you fully aware of what you're giving up?
    • must have 24 hrs at least to decide then sign
  74. prenups - what can be limited in CA
    • each party's salary and wages can remain that party's separate property
    • agreement can govern the disposition of property on separation, divorce, or death, including the making of a will or trust and the disposition of life insurance policies
    • can deal with any other matter including personal rights and obligations
  75. common law marriages
    • no wedding "formalities"
    • 10 states allow this (but not CA)
    • requires parties be eligible to marry, voluntarily intend to be husband and wife, must live together, and hold themselves out as husband and wife
    • termination of common law marriage requires court divorce degree
  76. steps to divorce
    • most states recognize no-fault divorces
    • 1. file a petition for divorce
    • 2. wait required waiting period (typically 6 months)
    • 3. court issues decree of divorce
    • 4. trial if parties are unable to negotiate terms
  77. division of assets
    • if parties cannot agree, court will do it for you
    • equitable division: fair but not necessarily equal
    • community property: divided equally (equal $$ not equal amount of things)
  78. division of debts
    • premarital debts: most states - spouses personally liable for own premarital debts
    • incurred during marriage: spouses jointly liable; court may equally distribute debts upon divorce; if spouse that is responsible defaults, creditors can go after the other
  79. alimony
    • payments for a limited time during which the individual can obtain the education or job skills necessary to enter the job force
    • parties can agree to an amount of the court can award if warranted
    • payments can change if individual making payment loses a job, income increases/decreases
    • person getting alimony doesn't pay the taxes; person paying it does
  80. alimony payments terminate upon:
    • death
    • individual receiving support remarries
    • individual receiving support becomes self-sufficient (courts usually don't wanna do this)
  81. child support
    • non custodial parent is obligated to contribute financial support
    • must provide for necessities of life through age of majority
    • many states use a formula to calculate
    • Family Support Act: requires automatic wage withholding from non-custodial parent for child support payments
  82. intestate
    • when a person dies without a will or
    • dies without a valid will or
    • property is not included in the will
    • excludes: community property, joint tenancy, life estates
  83. intestate succession rules
    • surviving spouse - typically all your property goes to them
    • no surviving spouse? goes to children (or issue of children) then parents, then siblings
    • escheats to state if you have absolutely no one
    • see notes for 詳しい
  84. per stirpes
    • parties take by representation of their parent's share
    • see slides
  85. per capita
    parties take by equal share
  86. 5 requirements for wills
    • 1. written (handwritten is legal)
    • 2. capacity (must be 18 and mentally stable)
    • 3. testator's signature (can be anywhere; can be a nickname like Dad)
    • 4. witnesses (at least 2 disinterested witnesses; or if 1 without and 1 is an interested beneficiary – will is still valid but beneficiary will receive amount up to which he/she would have received through intestate succession (and nothing more)
    • 5. acknowledgment
  87. codicil
    • a second validly executed will that modifies, amends or revokes a prior will
    • must be executed in same manner
    • must incorporate the will being amended by reference
  88. methods of revoking a will
    • codicil
    • physical destruction
    • operation of law
  89. physical destruction of a will
    • burn: slightly burn the will, that's it
    • tear: the tear has to touch the text of the will
    • write: "cancelled" through it
  90. operation of law to destroy a will
    • divorce of annulment revokes disposition of property to former spouse
    • children born or adopted after execution of will (entitled to intestate share; unless specifically excluded)
  91. probate
    • court-supervised administration of a decedent's estate
    • takes a long time
  92. trusts
    • = legal arrangement where legal title to property is transferred to a trust; assets become legally owned by the trust and are no longer considered part of your estate
    • avoid probate course
    • trusts are private
    • provides flexibility wills can't
    • generally, are irrevocable
  93. the landlord's duty to allow the tenant to peacefully possess the premises is:
    covenant of quiet enjoyment
  94. warranties that apply to merchants only
    • no infringements
    • merchantability
  95. document of title issued by a common carrier stating that a bailor has title to the bailed goods
    bill of lading
  96. in CA it is illegal to ___ but not ___
    • ask if you were arrested for drugs
    • request you be genetically tested
  97. burglary vs. robbery
    • burglary is unauthorized entry of a building; not limited to but could include theft
    • robbery is theft with use of weapon or violence
  98. steps to a criminal case
    • arrest
    • indictment
    • arraignment
    • trial
  99. warranty of non-infringement
    protect a consumer that goods are free of trademarks and copyright claims
  100. if lease is silent on date you have to pay rent, then you have to pay by
    last day of the month
  101. magnusson-moss warranty act?
    you have to clearly indicate whether it's full or limited warranty
  102. testamentary trust
    comes into existence when the testator dies
  103. unemployment insurance premiums paid by?
    employers
  104. an unlawful detainer action
    a legal process that a landowner must complete to evict a holdover tenant
  105. living will
    a document that states which life-saving measures the signor does/doesn't want along with specifying that he/she wants such treatments withdrawn if doctors determine that there is no hope of meaningful recovery

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